Archive for
July, 2012

Second Annual Junior Faculty Forum for International Law–University of Nottingham, May 2013

by An Hertogen

Calling all junior faculty members…

Professors Dino Kritsiotis (Nottingham), Anne Orford (Melbourne) and J.H.H. Weiler (NYU) just launched the Second Annual Junior Faculty Forum for International Law. It is designed to bring together international legal scholars in the first six years of their academic career to present on a particular aspect of their research work before peers and experts in the field. Each presentation will then be discussed by a senior international legal scholar who has been designated to each junior faculty member for the purposes of the Forum.

Selected presentations from the second Forum will be published in a future issue of the European Journal of International Law (Oxford University Press).

Applications are due by October 31, 2012. Further details on eligibility and the application procedure can be found here.

Weekday News Wrap: Tuesday, July 31, 2012

by Jessica Dorsey

Gabor Rona on Targeted Killing: A Response to Michael Lewis

by Gabor Rona and Jocelyn Getgen Kestenbaum

[Gabor Rona is the International Legal Director of Human Rights First]

Over at Lawfare,  Mark Mazetti’s New York Times Magazine article “The Drone Zone” generated a rich discussion on targeted killing with entries by Ken AndersonGeoff CornmeCharles DunlapLaurie Blank, and Michael Lewis. Mike took particular aim at my comments and I’m grateful to Opinio Juris for giving me the opportunity to reply.

Mike says drones are good for civilians since they are the most discriminating weapon in the history of warfare. Actually, drones are, thankfully, stupid. They don’t, as of yet, make targeting decisions. Humans do. And Mike is right that those humans might exercise greater restraint than an “in theater” pilot whose life is at risk. But that addresses only the lesser of two factors influencing civilian casualties: mistaken determinations of targetability under pressure of attack, resulting in collateral damage.

The more significant factor that Mike does not mention is the pre-meditated determination, also made by humans, of who is targetable. This determination is not made merely by “drone pilots.” The other, arguably more influential, humans who Mike does not mention and who are also not at personal, physical risk are the politicians and military leaders who define and implement the criteria for killing. Question: are these people more inclined to take greater liberties on targetability if their personal risk, or that of their constituency, is reduced to zero? I think the answer is obvious and threatens to undermine the calculus of IHL much more than the benefits of safe distance would serve to lessen civilian casualties.

I think Mike also misses an important point in suggesting…

The Kochs Lose a Friend. But Does He Give Refunds?

by Kevin Jon Heller

Add another name to the list of scientists that understand global warming is both real and the product of human activity.  Come on down Richard A. Muller:

CALL me a converted skeptic. Three years ago I identified problems in previous climate studies that, in my mind, threw doubt on the very existence of global warming. Last year, following an intensive research effort involving a dozen scientists, I concluded that global warming was real and that the prior estimates of the rate of warming were correct. I’m now going a step further: Humans are almost entirely the cause.

My total turnaround, in such a short time, is the result of careful and objective analysis by the Berkeley Earth Surface Temperature project, which I founded with my daughter Elizabeth. Our results show that the average temperature of the earth’s land has risen by two and a half degrees Fahrenheit over the past 250 years, including an increase of one and a half degrees over the most recent 50 years. Moreover, it appears likely that essentially all of this increase results from the human emission of greenhouse gases.

These findings are stronger than those of the Intergovernmental Panel on Climate Change, the United Nations group that defines the scientific and diplomatic consensus on global warming.

I don’t know what is more pleasing: that the denialist camp has lost one of its last credible members — James Inhofe and the Heartland Institute (see its charming billboard above) do not a movement make — or that the largest financial backer of Muller’s research is… The Charles G. Koch Charitable Foundation.

I imagine the Kochs want their money back right about now.

Weekday News Wrap: Monday, July 30, 2012

by Jessica Dorsey

Upcoming Events: July 29, 2012

by An Hertogen

Call for Papers

Last week’s announcements can be found here. If you are organizing a conference or other event and would like to see the call for papers or the program announced on Opinio Juris, please contact us.

Weekend Roundup: July 21 – 27, 2012

by An Hertogen

This week on Opinio Juris, we shared what our Readers’ Survey taught us about our readers, and we implemented a widely requested new feature: the Opinio Juris Job Board. You can access the Job Board here or via the link on the right-hand sidebar. If the survey has left you wanting to know more about Opinio Juris, check out Chris Borgen’s recent TV interview about the blog’s origins. Recent research has shown that we have become one of the top 10 cited blogs, as Kevin mentions here.

Peter Spiro posted about the possibility that Honduras may outsource certain appeals procedures to Mauritius, which could ultimately lead to cases with respect to Honduras being decided by the Privy Council, and raised three points about overseas voting and campaign finance in response to Mitt Romney’s visit to the UK.

Speaking of Mitt Romney, while he may have questioned whether London is ready for the Olympics, we here at Opinio Juris certainly are, with Peter paying attention to questions of the nationality of competitors. He posted about a decision by the IOC’s Executive Board allowing a marathon runner to compete as an Independent Olympic Athlete, and discussed whether there is a solution to avoid strategic nationality choices in the Olympics. You can find more about the latter, including Peter’s argument to remove the requirement that an athlete is a national of the country of the National Olympic Committee entering him or her, on NYTimes’ Room for Debate.

Kevin Jon Heller discussed a change in policy in the US towards Rwanda’s President Paul Kagame over military support to warlords in the DRC. He was also puzzled by a statement of the OTP that the ICC does not have jurisdiction because Rwanda is not a party even though the alleged aiding and abetting took place in the DRC, which is a party.

Duncan Hollis argued that the Aurora shootings are unlikely to change US positions during negotiations of the Arms Trade Treaty.

In a guest post, Solon Solomon wrote about the dynamic interpretation of the law of occupation. A second guest post, by Annie Gell, discussed the practical lessons to be learned from the recently concluded Taylor trial.

Finally, our list of upcoming events is here and the weekday news wrap is here.

Thank you to our guest posters for their contributions and have a nice weekend!

Opinio Juris the Seventh Most Cited Faculty Law Blog

by Kevin Jon Heller

According to research conducted by Jay Brown of theRacetotheBottom.org, blogs have been cited in “law reviews, journals, and other legal publications” more than 6300 times — a nearly fourteen-fold increase since 2006.  Here are the 10 most-cited faculty law blogs:

1. Volokh Conspiracy — 742 cites
2. Balkinization — 426 cites
3. Patently O — 393 cites
4. Concurring Opinions — 279 cites
5. Sentencing Law and Policy — 272 cites
6. Prawfs Blawg — 219 cites
7. Opinio Juris — 200 cites
8. Lessig Blog — 178 cites
9. Harvard Forum on Corp. Gov. — 178 cites
10. Conglomerate — 171 cites

Brown also notes that the list has remained remarkably stable over time, with seven of the 10 being among the 10 most-cited law blogs in 2007.  We are actually one of the three newcomers, which is great news.

Thanks to all the scholars out there who have cited us!

Guest Post: The Special Court for Sierra Leone’s Landmark Prosecution of Charles Taylor: Lessons for Trial Practice

by Annie Gell

[Annie Gell is the Leonard H. Sandler fellow in the International Justice Program at Human Rights Watch]

report coverYesterday, Human Rights Watch released the report “Even a ‘Big Man’ Must Face Justice”: Lessons from the Trial of Charles Taylor. It examines the conduct of Taylor’s trial at the Special Court for Sierra Leone (“SCSL”), the court’s efforts to make its proceedings accessible to affected communities, and perceptions and initial impact of the trial in Sierra Leone and Liberia.

The aim of the report is to draw lessons to promote the best possible trials of high-level suspects who are implicated in genocide, war crimes, and crimes against humanity. It is based on interviews in The Hague, London, Washington, DC, New York, Sierra Leone, and Liberia, as well as review of expert commentary, trial transcripts, and daily reports produced by trial observers.

This post focuses on Human Rights Watch’s analysis of the trial’s conduct and lessons learned for future proceedings.

Continue Reading…

Can There Be a “Global Solution” to Strategic Olympic Nationality?

by Peter Spiro

With opening ceremonies about to get underway  in London, there’s a discussion on Olympic nationality over at the NY Times Room for Debate with contributions from myself, Ayelet Shachar, Ian Ayres, and Jean-Loup Chappelet. Ayres and I agree that the current regime is unfair to both spectators and athletes by excluding would-be top competitors. Ayres would allow countries to grant citizenship and Olympic eligibility as they see fit; I would get rid of the eligibility rule altogether.

Shachar and Chappelet, on the other hand, see abuse in the current regime. No doubt there are “strange nationalities.” In some cases, individuals have exploited an anomalous basis for citizenship in countries to which they have little or no affective (or effective) attachment – often on the basis of a parent or grandparent’s nationality. In others, countries have in effect bought competitors, with a grant of citizenship as a necessary part of the bargain.

I don’t see this is as a problem, except to the extent that it depends on luck of the draw (either you have that grandparent or you don’t). But even if it were, I don’t know how you police against it. Chappelet calls for a “global solution”, Shachar for a “coordinated international response”.

But what would the solution look like? The current regime already imposes a three-year “cooling off” period in cases of nationality transfer, except where the country of origin agrees to a waiver (often in the wake of an NOC-NOC payment). You couldn’t reasonably make that any longer.  I suppose you could attach a residency requirement as well, to police against the grandchild phenomenon. Who’s to say that national eligibility on that basis is illegitimate? In some cases the affective attachment will be meaningful, as anyone with a close relationship to a grandparent will understand.

So there’s no way to shore up the system, which only gets leakier as states adopt more relaxed citizenship practices.

Weekday News Wrap: Friday, July 27, 2012

by Jessica Dorsey

A Puzzling Statement by the OTP Regarding Rwanda

by Kevin Jon Heller

According to the Washington Post, Phakiso Mochochoko, the head of the Jurisdiction, Complementarity and Cooperation Division in the Office of the Prosecutor at the ICC, said the following in response to Stephen Rapp’s recent comments about the potential criminal liability of the Rwandan government for its support of Bosco Ntaganda’s M23 in the Congo (emphasis added):

The International Criminal Court is not investigating Rwanda’s alleged support of a rebel group committing atrocities in the Congo, a court official said Thursday.

The court’s focus is on the arrest of the rebel leader Bosco Ntaganda of the M23 rebel group, said Phakiso Mochochoko, head of the Jurisdiction, Complementarity and Cooperation Division at the ICC (emphasis mine).

The International Criminal Court is not investigating Rwanda’s alleged support of a rebel group committing atrocities in the Congo, a court official said Thursday.

The court’s focus is on the arrest of the rebel leader Bosco Ntaganda of the M23 rebel group, said Phakiso Mochochoko, head of the Jurisdiction, Complementarity and Cooperation Division at the ICC.

“We are not in any way looking at Rwanda and in addition to that Rwanda is not even a state party to the ICC,” Mochochoko said.

What?  According to the UN, the Kagame government has supported M23 in the Congo by providing it with both weapons and troops.  If those actions amount to aiding-and-abetting, the Kagame government is responsible for crimes committed in the Congo, which is a state party to the Rome Statute.  And that means the ICC would have jurisdiction over Kagame and any other responsible government official pursuant to Article 12(2)(a) of the Rome Statute, which provides, in relevant part, that “the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3… [t]he State on the territory of which the conduct in question occurred.”  The fact that Kagame and the other officials might have been physically located in Rwanda when they gave the orders that led to the troops and weapons being sent to the Congo is irrelevant.  Because aiding and abetting is a mode of participation and not a substantive crime (a critical distinction; see this representative U.S. case), the crimes for which they may be responsible were committed in Congo, not in Rwanda.  And that is all the Rome Statute requires.

Will the Colorado Massacre Change US Positions on the Arms Trade Treaty?

by Duncan Hollis

Not likely it seems. The tragic shootings in Aurora, Colorado may be responsible for moving President Obama to talk about gun control as he did yesterday in New Orleans, despite a noticeable earlier reticence to engage that topic.  But that speech was clearly aimed at a domestic audience, emphasizing a need for improved domestic regulations and responses to gun violence.  There was no mention of the on-going talks in New York that seek to regulate the international trade in arms and (at least originally) ammunition. By most accounts, those talks aren’t going terribly well as negotiators enter the final 36 hour push to adopt a text before negotiations end on Friday.

On Tuesday, the Conference Chair, Ambassador Moritan of Argentina, circulated a new draft text that excluded any regulation of ammunition, which some States and many NGOs like Oxfam had wanted covered.  As David Bosco describes it at The Multilateralist, one of the key obligations is also now clouded by a purpose requirement (which restricts arms trade for certain purposes, such as committing genocide, rather than just regulating the trade of specific arms themselves).  Also absent are third-party compliance mechanisms. Now, none of these things are required in order for the negotiators to conclude a treaty.  And this would be far from the first instrument to be heavy on rhetoric and light on changes to the status quo.  But what does seem interesting here is the narrative that puts most, if not all, of these developments squarely on the shoulders of the United States.

Standing alone, I’m not surprised by the US position(s) on what the treaty should look like — it seems consistent with what I posted earlier this month.  The Obama Administration is seeking to thread a very fine needle here — achieving some international regulation of the arms trade via treaty that it could sign onto without triggering much in the way of constitutional, let alone political, objections (so far, its efforts on the latter front aren’t going so well, given how little the last month of negotiations has done to assuage those who oppose the idea of an arms trade treaty entirely).  Still, as news reports circulate about the Colorado shooter’s on-line purchases of guns and some 6000 rounds of ammunition, it does put the Obama Administration in an awkward position, especially if any of that ammo had foreign origins (although the shooter’s guns and protective gear appear to be of US origin, I’ve not seen anything one way or another on the origins of that ammunition).  As the UN Conference is seeking to adopt a treaty text by consensus, the US can always stand firm and oppose provisions on ammunition or additional controls on State behavior.  In doing so, however, the Obama Administration risks being put in the spotlight as anti-gun regulation at the very time when it would like to convey the opposite impression.

If It’s Thursday, It Must Be London (Mitt Romney Edition)

by Peter Spiro

Mitt Romney is holding a fundraiser this evening in London. (Here’s a nice scene-setter.)  Almost quaint how he promises not to criticize Obama while abroad, in the tradition of politics stoppping at the water’s edge (as if physical location still mattered in the context of completely transnationalized media).

Three quick thoughts:

1. This kind of extraterritorial campaigning is becoming routine. Lots of US citizens live abroad (estimates of as many as seven million), they can vote come November, and (way more importantly) they have a lot of money. For Romney’s purposes, London is just a little east of the Hamptons!

2. I wonder if Romney will get an earful about new IRS practices regarding foreign account holders and the notorious (at least among nonresident Americans) law known as FATCA. Nonresidents have some discrete interests as such, but they don’t seem to have organized very well as a special interest group. (It would be easier if there were a First Overseas District in Congress — an approach now used by other countries, for example France, in which external citizens have their own representatives in national legislatures).

3. Why is it someone who lives in London can donate money when some people living in the US can’t?  Some of the donors at tonight’s dinner may never have resided in the United States (it is possible to be a US citizen for life without ever having set foot in the US, though I doubt that would be true of the private-jet set around the table with Mitt).  Bluman v. FEC presented a very plausible challenge to the ban on campaign donations by nonimmigrants in the US (brought by two very sympathetic plaintiffs – one a lawyer, one a doctor, one Republican, one Democrat, both here on long-term work visas). That was given the back of the hand by the Judge Kavanaugh, on a well-dressed but basically ipse dixit basis.

Weekday News Wrap: Thursday, July 26, 2012

by Jessica Dorsey

The Honeymoon is Over for Paul Kagame

by Kevin Jon Heller

Although clearly a step up from its genocidal predecessor, Kagame’s government in Rwanda is anything but progressive. According to the State Department, the government is responsible for — inter alia — illegal detention, torture, enforced disappearance, attempted assassinations of political opponents, restrictions on the freedom of speech and press, violence toward journalists and human rights advocates, discrimination against women/children/gays and lesbians, trafficking in persons, restrictions on labor rights, and use of child labor.  The West has nevertheless generally preferred to ignore Kagame’s horrible human rights record, focusing instead on Rwanda’s supposed “economic miracle” since he took power (which, not coincidentally, has involved unprecedented friendliness toward Western multinationals.)

That said, I think the honeymoon is finally over.  As the Guardian reports, Kagame’s longstanding — and remarkably flagrant — support for Bosco Ntaganda’s M23 rebel group in the Congo seems to have caught up with him…

What Will the Medal Count Be for “None of the Above”: Olympics Allows Non-National Competitors

by Peter Spiro

The International Olympic Committee will allow marathoner Guor Marial to compete as a man without a country. From the IOC’s executive board summary of its decision in the case:

Passport-less athlete approved to compete
The EB also approved a request to allow marathon runner Guor Marial to compete in the London 2012 Games as an Independent Olympic Athlete (IOA) under the Olympic flag. Marial was born in what is now South Sudan, which does not currently have a recognised National Olympic Committee. The athlete, who does not hold a passport from any country, is a permanent resident (refugee status green card) of the United States but not a citizen. As such, he is unable to compete for the United States, South Sudan or Sudan. Marial qualified for the Games with an A Standard time on 2 October 2011.

More background here.

This is not a first time for “Independent Olympians” – more than 50 competed in Barcelona in 1992, most apparently from the former Yugoslavia in the absence of successor National Olympic Committees there, and others have haled from Kuwait, East Timor, and the Netherlands Antilles. I suppose the Marial case fits comfortably in those precedents, though a quick search of the Olympic Charter itself doesn’t cough up an obvious formal basis for the category.

If nothing else, Marial proves the obvious point that for non-team competitions, national affiliation is not an inherently necessary organizing principle.

Weekday News Wrap: Wednesday, July 25, 2012

by Jessica Dorsey

Postnational Justice: Honduras Looks to Outsource Appeals to Mauritius (and London)

by Peter Spiro

From the Guardian, an account that even an academic would have a hard time making up: Honduras may allow for extraterritorial appeals in some number of jurisdictions, amounting to “semi-independent city-states,” established to improve investment appeal:

The complex constitutional agreement under discussion involves Mauritius – an island 10,000 miles away in the Indian Ocean – guaranteeing the legal framework of the courts in the development zones, known locally as La Región Especial de Desarrollo (RED).

Mauritius, a member of the Commonwealth, still uses the privy council in Westminster as a final court of appeal. Consequently any cases originating in Honduras could progress to the appeal courts in Mauritius and eventually reach the judicial committee of the privy council in London.

If this sets a precedent, the possibilities are pretty much endless. The article does note that the privy council has otherwise seen a decline in business, as Caribbean countries opted out from Commonwealth jurisdiction by way of preserving their use of the death penalty. It also notes that the scheme may be limited to investment disputes, so in some ways it’s not much different than using ICC-type arbitration. But the proposal would seem to introduce new possibilities for national courts. If British justice is reliable justice, consider it a new-world export market.

Chris Borgen and Opinio Juris on NYC TV

by Duncan Hollis

Our own Chris Borgen recently did an interview about Opinio Juris on a New York City Cable Show, Today’s Verdict.  You can watch it here.  Chris talks about the origins of the blog, past successes and our more recent work (mostly for an audience unlikely to know much about international law).  To top it all off, Chris looks great on TV. Good job Chris!

Guest Post: The Dynamic Law of Occupation: Two Recent Cases from the Middle East

by Solon Solomon

[Solon Solomon is a Former Member of the Knesset (Israeli Parliament) Legal Department in charge of international and constitutional issues]

Traditionally, the law of occupation envisions the continuation and preservation of the status quo ante. Yet, in cases of prolonged occupations, it has been conceded that the occupying power can alter legal or factual reality if this is for the betterment of the local occupied population’s life.

The question is though if in such instances, alongside a dynamic interpretation of the law of occupation, the factual and normative status quo can be subject to a change in order to meet the needs not of the local population but of the occupying power. One way to reach an affirmative answer is to broadly interpret existing notions in the law of occupation, such as that of “military necessity.” This is the path traditionally chosen by Israel’s Supreme Court which has consistently ruled that “military necessity” covers also the wider security needs of the occupying power’s civilians.

Alternatively, someone can opt to render a dynamic note to the law of occupation and interpret it accordingly. No longer does occupation remain a static, historical fact, but it adapts to the advent of time. The question is if such adaptation is only factual or also legal. Two recent examples from the two classical prolonged occupations in the Middle East bring to the frontline this de facto and de jure transformation the law of occupation undergoes or aspires to undergo. Continue Reading…

Weekday News Wrap: Tuesday, July 24, 2012

by Jessica Dorsey

Opinio Juris Job Board

by Jessica Dorsey

You asked and we answered! In our recent readers’ survey, nearly 70% of the respondents indicated that they have an interest in learning about new jobs in relevant fields of international law or foreign policy. We have therefore teamed up with JobThread to provide an Opinio Juris Job Board for our readers.

This board is updated frequently and offers jobs with a wide array of functions–from the legal field to education to technology. Jobs can be found in an array of locations as well–from many cities in the US to London, Leicester and Manchester in the UK. As more employers post on the Opinio Juris Job Board, we aim to provide an even wider offering in the future.

If you’re a job seeker, feel free to click here to have a look at what is out there on the Job Board now.

If you’re an employer, you can click here to start the process of posting your own opening today.

You can bookmark the site at http://jobs.opiniojuris.org.This new feature will also be located on our right-hand sidebar, under the Facebook logo.

We hope that the Opinio Juris Job Board matches some of our readers to the perfect position and that it helps employers find their perfect match. As always, feedback is welcome.

Happy job hunting!

Opinio Juris’ Readers’ Survey – June/July 2012

by An Hertogen

Unless you have just started reading Opinio Juris or have been on a field trip in North Korea, you will have noticed that we recently held our first Readers’ Survey. We are very grateful to all 274 respondents who took the time to complete our questionnaire. Many also entered their name in the sweepstakes for the $100 Amazon voucher. We are pleased to announce that the winner is Antonino Cutrupi, who is a trainee lawyer in Italy.

The responses have given us a lot of information to digest, some of it surprising, some of it less so. We will certainly take your comments into account when deciding on future directions for Opinio Juris, and thank all of you for your valuable and honest feedback!

For those of who are interested to learn more about our readers, more details are included after the jump.

Weekday News Wrap: Monday, July 23, 2012

by Jessica Dorsey

Upcoming Events: July 22, 2012

by Jessica Dorsey

Conferences & Events

  • The University of Leiden will host a conference: International Humanitarian Assistance and International Law, January 24-25, 2013. The aim of the conference is to bring experts in the field of international humanitarian assistance together and to explore various fields of law relating to humanitarian assistance, like international humanitarian law, human rights law, international disaster response law, and other fields. The provisional program is here with a list of speakers here. Registration is not yet possible, but questions can be directed here.
  • A few special announcements from the American Society of International Law can be found here, including a call for ASIL leadership and honors nominations.

Call for Papers

Last week’s announcements can be found hereIf you are organizing a conference or other event and would like to see the call for papers or the program announced on Opinio Jurisplease contact us.

Weekend Roundup: July 14-20, 2012

by An Hertogen

This week on Opinio Juris, Julian Ku discussed how the announcement by two US Senators of their position against ratification of the UNCLOS, has effectively sunk ratification for this year, and argued that the next administration should seek out bilateral agreements to protect commercial exploitation of the seabed on the high seas.

Deborah Pearlstein argued why the US, even if it is not at war with Yemen, is at war in Yemen, and discussed the legal consequences thereof.

Kevin Jon Heller gave four reasons why the ICC should not get involved in Mali and discussed the ICC’s Pre-Trial Chamber’s rejection of the Office of the Public Counsel for the Defence’s request that certain information in its response to Libya’s admissibility challenge be kept confidential to all other parties involved.

Roger Alford summarized empirical evidence on the question whether democracies are less corrupt than autocratic regimes.

We also had a guest post by Sari Bashi who welcomed the candor, although not the conclusions, of a recent Israeli committee report renouncing the existence of a state of occupation in the West Bank.

Our bloggers also wrote about interesting new material that has recently become available. Duncan Hollis, our resident connoisseur of databases and digests, posted about the release of the 2011 Digest of United States Practice and the wider availability of a database on bilateral civilian nuclear co-operation agreements. Duncan also welcomed Arms Control Law to the blogosphere.

Kevin Jon Heller drew your attention to a recent essay by David Frakt on direct participation by civilians in hostilities as a war crime, which led to further discussion between John C. Dehn and David Frakt in our comments.

Jessica Dorsey posted about the digital release of volume 88 of the US Naval War College’s International Law Studies’ Blue Book series.

Finally, we published a list of upcoming events and our daily news wraps.

Have a great weekend!

PTC: Information Regarding an Admissibility Challenge Cannot Be Confidential

by Kevin Jon Heller

This may be a bit inside baseball for most, but the Pre-Trial Chamber issued an interesting decision yesterday regarding the Office of Public Counsel for the Defence’s formal response to Libya’s admissibility challenge.  According to the PTC, the OPCD wanted some of the information contained in its response to remain confidential not only in perpetuity, but also ex parte.  In other words, the OPCD wanted the PTC to rely on that information but not disclose it to either Libya or the OTP.  Presumably, the information in question relates to Melinda Taylor’s detention in Libya; when I found the decision, I was just about to write a short post wondering what had happened to Taylor’s report, which she had promised to file with the court nearly 10 days ago.

In any case, the PTC rejected the OPCD’s request:

10.    Having reviewed the Request, the Chamber is of the view that the extent of permanent redactions sought by the OPCD defeats the purpose of a response to an admissibility challenge. Indeed, it is the understanding of the Chamber that it may base its decision on the admissibility of the case exclusively on information which is accessible to the other parties to the admissibility proceedings. Accordingly, the OPCD may not rely on submissions and material which are not duly communicated to the other parties.

This is clearly the correct decision.  No matter how sensitive the information may be, the PTC cannot take it into account unless Libya and the OTP have the opportunity to respond to it.  That’s the nature of the adversarial process.

The PTC ordered the OPCD to file its response by July 24 and to rely solely on information that could be disclosed to Libya and the OTP.  Alas, that probably means some of the information will be redacted in the Court’s public documents.  We’ll have to wait and see.

Are Democracies Less Corrupt? The Answer May Surprise You

by Roger Alford

As part of my research on international corruption in a forthcoming article in the Ohio State Law Journal, I came across some interesting studies on the relationship between corruption and democracies. One would think that democratic regimes are less corrupt than autocratic regimes because in democracies public officials are subject to political accountability. But the evidence suggests otherwise. Empirical research confirms that the relationship between corruption and democracy is nonlinear. Only countries that are fully institutionalized democracies consistently rank well on Transparency International’s Corruption Perception Index scores. There is no measurable improvement in corruption rankings between mixed political regimes and partial democracies. Moreover, in many cases institutionalized autocracies have better corruption scores than partial democracies.

As one study noted, “corruption is likely to be slightly lower in dictatorships than in countries that have partially democratized. But with more complete democratization … countries experience much lower levels of corruption.”

Another study found that “[h]ow well any government functions simply hinges on how good citizens are at making their politicians accountable for their actions…. [I]t is only when citizens effectively discipline policymakers to serve them that public goods are delivered in an efficient manner and corruption is curtailed.” This requires not simply free and fair elections, but also informed citizens capable of curbing corruption.

Of course, fully-fledged democracies do not spring forth overnight. Studies indicate that a “long period of period of exposure to democracy lowers corruption.” It is common for countries in transition toward democracy to experience a growing problem with corruption. But in the battle against corruption, patience is a virtue. As one study put it, the “[g]reatest rewards (in the form of a clean and transparent state) [a]re granted to countries that [a]re able not only to realize but also to maintain the strongest and healthiest democratic institutions.”

In short, lukewarm democracies are not effective at combating corruption, and often do a worse job at it than tin-pot dictators. Only when democracy has fully flowered is there a strong positive correlation between a democratic form of government and low-levels of perceived corruption. The good news is that fully-fledged, well-established democracies are the cleanest governments on earth.

Weekday News Wrap: Friday, July 20, 2012

by Jessica Dorsey

Guest Post: Israeli Committee Declares End to West Bank Occupation

by Sari Bashi

[Sari Bashi is the executive director of Gisha, an Israeli human rights organization protecting the right to freedom of movement in the occupied Palestinian territory]

Last week, a committee appointed by Israeli Prime Minister Benjamin Netanyahu to recommend disposition of about 100 Israeli outposts in the West Bank established in violation of Israeli military zoning laws released its conclusions (English summary here). The committee members, hand-picked by Netanyahu, were expected to recommend authorizing the outposts retroactively, and they did.  What was less expected were 11 double-spaced pages in the report that renounced the existence of a state of occupation in the West Bank.

To be sure, official declarations denying Israel’s occupation of the territory captured in 1967 are not new, but thus far, they have been limited to the Gaza Strip, as this spring’s Opinio Juris symposium highlighted. This latest report, the work of a committee headed by former Supreme Court Justice Edmond Levy, is further reaching. Its recommendations have yet to be considered by the Israeli government.

The Levy Committee reverted to an old argument by the government, namely that the Fourth Geneva Convention’s rules on occupied territory do not apply in the West Bank and Gaza because they did not form part of the territory of a High Contracting Party, meaning a sovereign state, prior to being captured by Israel in 1967. However, it added a far-reaching and somewhat puzzling twist: the committee found that Israel…

Weekday News Wrap: Thursday, July 19, 2012

by Jessica Dorsey

Will Mali Be the First Bensouda-Era Investigation?

by Kevin Jon Heller

It looks increasingly likely.  Mali has formally self-referred the situation in the country to the ICC and the OTP has already opened a formal preliminary investigation.  Here is yesterday’s statement from Fatou Bensouda:

Today I received a delegation from the Government of Mali led by the Minister of Justice, H.E. Malick Coulibaly. The delegation transmitted a letter by which the Government of Mali, as a State Party to the ICC, refers “the situation in Mali since January 2012” to my Office and requests an investigation to determine whether one or more persons should be charged for crimes committed. The Government of Mali submits that the Malian courts are unable to prosecute or try the perpetrators. The Malian delegation also provided documentation in support of the referral.

[snip]

My Office has been following the situation in Mali very closely since violence erupted there around 17 January 2012. On 24 April, as instances of killings, abductions, rapes and conscription of children were reported by several sources, I reminded all actors of ICC jurisdiction over Rome Statute crimes committed on the territory of Mali or by Malian nationals. On 1 July, I stressed that the deliberate destruction of the shrines of Muslim saints in the city of Timbuktu may constitute a war crime under Article 8 of the Rome Statute.

I have instructed my Office to immediately proceed with a preliminary examination of the situation in order to assess whether the Rome Statute criteria stipulated under Article 53.1 for opening an investigation are fulfilled. I will make a public decision in due course.

It is not difficult to understand the OTP’s temptation to open an investigation — as this BBC article summarizes, Northern Mali is essentially under the control of rebels that have links to al-Qaeda, murder and rape are endemic, beloved historical sites in Timbuktu are being intentionally destroyed, and hundreds of thousands of civilians have been displaced by the conflict.  That said, I think there are at least four reasons to question the wisdom of the ICC getting involved…

The Yemen War

by Deborah Pearlstein

It’s not news that the United States has been actively using armed force in Yemen for some time. The Bush Administration reportedly launched a first drone strike against alleged Al Qaeda targets in the country (with the Yemeni government’s cooperation) back in 2002, and of course multiple reports have described the Obama Administration’s use of drones in the country as well (this one among the more recent). But at some level, these strikes have been pitched – and are still usually reported – as one-offs. Yemen is named as among the handful of countries, along with Somalia, that has seen the occasional use of targeted strikes against individuals engaged in active plots against America and its interests. Nothing like the Iraq War. Nothing like the Afghanistan War.

As a few others have started to point out, that characterization is getting harder to see. Today brings news that Congress is considering a $75 million package of aid to Yemen’s counterterrorism forces, including $4.7 million so Yemen can have its own set of aerial surveillance drones, $8.6 million worth of up-armored Humvees, $15 million worth of weapons, and $1.5 million for the construction of two new Yemeni “expeditionary bases” in Aden and al-Anad. While standing alone, military aid to an ally (to the extent there’s a functioning government to support) hardly a war makes, the latest aid package doesn’t stand alone. Not long after the U.S. Defense Secretary and Chairman of the Joint Chiefs stated publicly that there “is no consideration of” sending American troops to the country, the Pentagon clarified (unsurprisingly) that there were indeed some Special Forces troops on the ground in country to help support Yemeni and U.S. targeting operations. In the past few months, the United States returned additional military advisers to Yemen to support the new government, and the President issued an unusual executive order that the White House described as “authorizing sanctions to be imposed on individuals and entities who threaten the peace, security, and stability of Yemen by disrupting the political transition” now underway. As the White House press release put it: “This Executive Order will allow the United States to take action against those who seek to undermine Yemen’s transition and the Yemeni peoples’ clear desire for change.” Meantime, the pace of U.S. bombing strikes in country (reportedly coordinated with the Yemeni government) appears to be accelerating amidst an increasingly bloody, multi-faction civil war, parties to which include, among others, the new Yemeni government and one faction supported by some version of a group lately associated with (what remains of) Al Qaeda.

In May, the New York Times quoted President Obama as having insisted to internal advisors: “We are not going to war with Yemen.” It may be the case that we are not at war “with Yemen.” But it’s getting tough to argue we’re not at war in Yemen. We are in what sounds an awful lot like a traditional, territory-specific, non-international armed conflict in which the United States has intervened on one side. The characterization of a conflict as an NIAC of course has legal consequences. (Among other things, at a minimum, the applicability of Common Article 3 to U.S. and Yemeni activities there.) Maybe more important in the near term, the characterization has political consequences that democracy is probably best served by acknowledging. By articulating the strategic costs and benefits, and making the case that the one outweighs the other. By explaining how such engagement is consistent with DOD budget cuts. By at least contemplating an end game.

Put it this way. It’s one thing politically to justify the targeting of a handful of Al Qaeda members before they can blow up a U.S.-bound plane. It’s another thing to say we’re embarking upon the third post-9/11 war of the millennium. I’d like to hear the argument on the Hill this week that the latter pitch is wrong.

Volume 88 of the USNWC’s Blue Book Series

by Jessica Dorsey

The United States Naval War College’s International Law Department has digitally published Volume 88 of its International Law Studies Blue Book series, entitled “Non-International Armed Conflict in the Twenty-First Century” and it may be downloaded for free from the Blue Book link on the Naval War College International Law Department’s Stockton Research Portal.

Additionally, a direct link to the .pdf file of Volume 88 is here.

Once printing is complete in the fall, the bound volume will be available for  purchase through the Government Printing Office Bookstore. Subscribers to Lexis and HeinOnline can search and retrieve the entire series. For questions concerning the Blue Book, the Naval War College International Law Department may be reached by emailing jayne [dot] vanpetten [at] usnwc [dot] edu or by calling +1.401.841.4949.

Weekday News Wrap: Wednesday, July 18, 2012

by Jessica Dorsey

Frakt on Direct Participation as a War Crime

by Kevin Jon Heller

I want to call readers’ attention to David Frakt’s excellent essay on direct participation in hostilities as a war crime.  Here is the abstract:

This article addresses, in part, the question of what to do with civilian direct participants in hostilities who are not killed by opposing armed forces, but are captured. Specifically, the article address the potential criminal prosecution of detained DPHs. The ability to detain provides an opportunity to the detaining power to prosecute the DPH “for an offence arising out of the hostilities.” But is it a crime for someone who does not meet the Geneva Convention requirements for POW status to directly participate in hostilities? In other words, are all DPHs criminals? If so, are they war criminals, or, rather, common domestic criminals? The prevailing international view is that direct participation in hositilities in and of itself is not a war crime. Contrary to the prevailing international view, the United States has attempted, through the military commissions of Guantánamo, to treat direct participation in hostilities as a war crime. This article examines that effort, including the prosecutions of David Hicks and Omar Khadr, and the failed prosecution of Mohammed Jawad for alleged direct participation in hostilities. The article concludes that America’s effort to convert all fighting against the U.S. by unprivileged enemy belligerents into a war crime has been a failure.

I’ve spent a great deal of time over the years criticizing the US government for attempting to invent war crimes — and criticizing courts for all too often permitting those attempts to succeed.  Frakt’s essay addresses one of the government’s rare failures, and it is a model of clarity, fairness, and analytic precision.  I was particularly struck by the force of his conclusion that “[i]n the future, if the United States seeks to create new customary international law, it should focus on criminalizing acts that are of greater global concern than routine attacks on U.S. troops.”  That seems like very good advice indeed.

Welcome to the Blogosphere Arms Control Law

by Duncan Hollis

Via an e-mail from Dan Joyner I learned today about a new blog he’s founded — Arms Control Law.  Here’s the pitch from one of the inaugural posts:

As the name suggests, this blog will be devoted to discussion and analysis of arms control law subjects. I wanted to start this blog because all of the current blogs in the arms control area focus on either technical or politics/policy views of arms control. There has been no blog that provides a serious forum for rigorous discussion of legal issues relative to arms control, by arms control legal experts – until now!

The team of core bloggers at www.armscontrollaw.com is:

Professor Dan Joyner, University of Alabama School of Law

Dr. Marco Roscini, University of Westminster Faculty of Law

Mr. Pierre-Emmanuel Dupont, Rochelois, Besins & Associe

Dr. Zeray Yihdego, Oxford Brookes University Faculty of Law

Professor Eric Myjer, University of Utrecht Faculty of Law

Professor David Fidler, University of Indiana School of Law

Professor Barry Kellman, Depaul University College of Law

Professor Dieter Fleck, Formerly of the German Ministry of Defense

Professor James Fry, University of Hong Kong Faculty of Law

That’s a pretty impressive list of contributors.  I’m looking forward to hearing what they have to say!

Weekday News Wrap: Tuesday, July 17, 2012

by Jessica Dorsey

US Will Not Join the Law of the Sea Treaty (At Least Not This Year)

by Julian Ku

It’s official. US ratification of UNCLOS is dead (at least for this year).  And, perhaps more significantly, the treaty was sunk by two senators, Robert Portman and Kelly Ayotte, both of whom appear to be on Republican nominee Mitt Romney’s vice-presidential short list.  Their announcements, in a letter to Senate Majority Leader Harry Reid, brings the number of announced U.S. Senators opposing US ratification to 34.  This effectively kills UNCLOS for this Congress.

The joint letter by Senators Portman and Ayotte cites most of the same objections set forth ably by Jeremy Rabkin and Steve Groves last month here at Opinio Juris.  The letter is skeptical of the fairness of the system of international dispute resolution set out by UNCLOS and worried about litigation under the ITLOS system or even in the ATS context. It is also skeptical of the ability of the Authority to fairly set forth rules and to administer the resources it will control.

The letter does throw in an argument that I’ve made in other contexts (and cites me in a footnote!): that the Seabed Disputes Chamber of the International Tribunal on the Law of the Sea may have unconstitutionally broad judicial powers to require enforcement of its judgments in US domestic courts.

The letter concedes, however, that there are substantial benefits of joining UNCLOS to the US Navy and to US commercial interests in exploiting undersea natural resources. But as to the first, it argues that the US government and navy can protect its navigation rights better than (or at least as well as) the UNCLOS system.  Intriguingly, the letter also points that commercial undersea development can still be protected via bilateral agreements, which has been done in the past (something Steve Groves has suggested).

I am still not totally sold on the practicability of this approach, but I do think that the next administration, whomever is elected, should explore such bilateral alternatives.  UNCLOS may be a great idea, but it is not going to be ratified by the US Senate in the foreseeable future. Time for oil and natural resources interests in the US to get a Plan B.

New International Law Resources: The 2011 US Digest and a Nuclear Treaty Database

by Duncan Hollis

Two quick research-related items.  First, I’m pleased to report that the 2011 Digest of United States Practice is now available on the State Department website.  Here’s the description from today’s press release:

The digest provides the public with a record of the views and practice of the Government of the United States in public and private international law. The official edition of the 2011 Digest is available exclusively on the State Department’s website at: www.state.gov/s/l/c8183.htm. Past digests covering 1989 through 2010 are also available on the State Department’s website. The Digest is edited by the Office of the Legal Adviser.

The Digest traces its history back to an 1877 treatise by John Cadwalader, which was followed by multi-volume encyclopedias covering selected areas of international law. The Digest later came to be known to many as “Whiteman’s” after Marjorie Whiteman, the editor from 1963-1971. Beginning in 1973, the Office of the Legal Adviser published the Digest on an annual basis, changing its focus to documentation current to the year. Although publication was temporarily suspended after 1988, the office resumed publication in 2000 and has since produced volumes covering 1989 through 2011. A cumulative index covering 1989-2006 was published in 2007, and an updated edition of that index, covering 1989-2008, was published in 2010.

I’m a huge fan of the digests (indeed, my first post-JD book purchase was a rather expensive complete set of Moore’s Digest, which I’ve since supplemented with the ensuing sets and volumes). The fact that the digest is now available electronically and no longer requires large monetary outlays is a service the State Department should be proud of.  And, on a more substantive note — check out Chapter 4, which includes information on both the ACTA negotiations and early US briefs in the Bond litigation, which Peter Spiro has since blogged about.

Second, back in April I posted a list of on-line treaty databases that scholars and practitioners might benefit from using in their work.  Recently, Jim Keeley of the University of Calgary’s Political Science Department called to my attention his work over the last quarter century compiling more than 2000 bilateral civilian nuclear co-operation agreements.  Although full-texts of these agreements are not always available, in many cases his database contains source information that includes the treaty texts.  I understand from Mr. Keeley that his list has been made available in the nuclear non-proliferation and co-operation arenas for some time, but I’m pleased to report that he’s willing to have it available more widely.  So, for those readers interested in treaties in the nuclear non-proliferation and cooperation contexts, check out his database here.

Weekday News Wrap: Monday, July 16, 2012

by Jessica Dorsey

Upcoming Events: July 15, 2012

by Jessica Dorsey

Conferences & events

  • The Brookings Institution will host Translating Human Rights into Practice: A Conversation on the United Nations Human Rights Council: Wednesday, July 11, 2012, 2:00 — 3:30 pm in Washington, D.C.
  • Washington College of Law Center for Human Rights and Humanitarian Law along with ASIL will host Human Rights Implications of SCOTUS Decisions in the 2012 Term: Wed., July 18, 2012, from 4:00-5:30 p.m. ET. Please register for the event by contacting whayes [at] wcl [dot] american [dot] edu and for the program flyer, click here
  • There will be a reception to introduce the International Court for the Environment Coalition (ICE) at 6.00 pm on Thursday 19th July at the World Federalist Movement-Institute for Global Policy, 708 Third Avenue, 24th Floor, New York City. More information about how the ICE works and about the ICE model (both .doc format). 
  • On Thursday, July 19, from 6-8 p.m. at the House Armed Services Committee, Carl Vinson Room (2118) 2120 Rayburn House Office Building in Washington, D.C.,  “Observations from a Female Shura in Afghanistan: Lasting Security and the Promotion of Women’s Rights” Sponsored by the Women in National Security Law Initiative of the ABA Standing Committee on Law and National Security and the ABA Office of Governmental Affairs – no charge but RSVP’s are required –holly [dot] mcmahon [at] americanbar [dot] org by July 17, 2012.
  • A few ABA Standing Committee on Law and National Security Annual Meeting Programs to announce, all happening in August at the Hyatt Regency, Chicago, IL (more information can be found here and here in .pdf format):
    • Cybersecurity: The Legal Puzzle, Friday, August 3rd, 2012 (3:45-5:15 p.m.
    • Critical Issues in National Security Law over the Last 50 Years: Past, Present and Future, Saturday, August 4th, 2012 (8:30-10:00 a.m.)
    • Nuremberg Revisited: It’s Lesson for Today, Thursday, August 2nd, 2012 (10:30 a.m.-12 p.m.)
    • The Renewed Trials by Military Commissions Under the Obama Administration: An Historical Perspective, Saturday, August 4th, 2012 (1:00-3:00 p.m.); Moderator: Maj. Gen. (Ret.) John Altenburg, Panelists: The Honorable Will Gunn, Brigadier General Mark Martins, Colonel (Ret.) Ralph Kohlman, Mr. Bryan Broyles
  • The 2012 World Trade Organization Public Forum will occur September 24-26, 2012 with the theme: Is Multilateralism in Crisis? in Geneva at the WTO Headquarters.

Last week’s announcements can be found hereIf you are organizing a conference or other event and would like to see the call for papers or the program announced on Opinio Jurisplease contact us.

Weekend Roundup: July 7-13, 2012

by Jessica Dorsey

This week, Opinio Juris was a bit lighter on the blogging due to the Fourth of July holiday in the US, but we did feature a post from Peggy McGuinness that pointed out a discussion on the St. John’s Center for Law and Religion Forum around the question of whether American foreign policy is Christian, in a conversation Mark Movsesian had with Andrew Preston. Preston is the author of Sword of the Spirit, Shield of the Faith, a book examining the role of faith in US foreign policy and military strategy.

Kevin Jon Heller kept us abreast of the sentencing of Thomas Lubanga Dyilo at the ICC this week, wherein Lubanga received 14 years (minus the six years he has already served while in the custody of the Court) for conscripting enlisting and using children under the age of 15 to directly participate in hostilities. Additionally, Kevin blogged about the implications of a story in the UK’s The Guardian wherein Professor James Crawford alleged that the EU may ban imports from the West Bank.

Kevin also blogged about the new PhD program in law at Yale University, the first of its kind (though there are other universities in the US offering interdisciplinary PhD programs coupled with legal or jurisprudential studies), which drew many insightful comments on the introduction of such a degree to the American system. And finally, Kevin compared the criticism about the operation of the ICC found in Eric Posner’s recent op-ed with the costs involved in the military commissions system in the United States. Both legal systems are celebrating their 10th anniversary this year.

The Opinio Juris readers’ survey closed at midnight on Friday, so to those who participated: a big Thank You Very Much! The results of the survey will certainly give us here at OJ helpful insight about what we might be able to do to make the site better for all of you.

Have a great weekend, everyone!

“American” Samoans Want US Citizenship

by Peter Spiro

“Non-citizen nationals” – a very small group of “Americans”. Anyone born in a state of the United States is a citizen under the 14th Amendment. Almost everyone else born in sovereign US territory (Puerto Rico, Virgin Islands, Guam) has citizenship at birth by statute. The only folks who don’t have citizenship at birth are those born in American Samoa and the Swains Islands, and they’re now challenging that fact in court (here is Ashby Jones’s account in the WSJ).

The status has its drawbacks. As highlighted in the complaint, as non-citizen nationals, Samoan Americans 1) can’t vote, even when resident in the US, 2) are ineligible for some public sector jobs (even some open to permanent resident aliens), and 3) can’t serve as officers in the US armed forces.

This is an anomaly — only 55,000 people live in American Samoa — and it’s something Congress should fix. There’s no apparent downside to extending citizenship to these people (who are as nationals permitted to immigrate to the US – even naturalize as citizens, through the ordinary process).

The lawsuit will bring some attention to the problem. In the meantime, it has little chance of success in the courts. The plaintiffs are up against a clear historical interpretation of the Citizenship Clause extending it to so-called incorporated territories only. To the extent that they’re making out an equal protection claim (why Guam and not us?) it comes up against Congress’ plenary powers over the territories. Not that any of this makes sense in a world in which “citizen” and “national” are otherwise basically synonymous.

The Absurd Military Commissions

by Kevin Jon Heller

A recurring criticism of the ICC is that it has little to show for its first 10 years — just one conviction — and has cost an inordinate amount of money.  Here, for example, are the opening paragraphs of Eric Posner’s recent attack on the Court in the Wall Street Journal, entitled “The Absurd International Criminal Court”:

Ten years ago, on July 1, 2002, the International Criminal Court (ICC) opened its doors. The treaty that created this new body gave it jurisdiction over genocide, crimes against humanity, and other international offenses committed anywhere in the world, by anyone against anyone. Supporters argued that it would put an end to impunity for dictators and their henchmen, and usher in a new era of international justice.

The court has been a failure. Although it has a staff of more than 700 and an annual budget in excess of $100 million, the ICC has so far completed precisely one trial—that of Thomas Lubanga, a commander in the civil war in Congo. It took three years and ended with a conviction on March 14, 2012. The appeals have not begun. A few other trials are ongoing or set to begin.

Even by the low standards of international tribunals, this performance should raise an eyebrow.

It occurred to me yesterday that another criminal-justice system recently celebrated its 10th anniversary: the United States military commissions at Guantanamo Bay, which President Bush created by executive order on November 13, 2001.  The commission system is vastly less complicated than the ICC — it builds on a long tradition of American military tribunals, it is run solely by one country, and it has jurisdiction over only one category of international crime (war crimes).  So surely it must be cheaper and more effective than an “absurd” multinational criminal tribunal like the ICC?

Let’s review:

  • November 2001 — military commissions created
  • July 2004 — first detainee indicted (Hamdan)
  • March 2007 — first detainee convicted after plea bargain; seven year sentence (Hicks)
  • August 2008 — first detainee convicted after trial; 66 month sentence (Hamdan)
  • Total number of indicted detainees: 13
  • Total number of convictions after trial: 2 (five plea bargains)
  • Cost of operating Guantanamo per year: $150,000,000

And now let’s compare.  The ICC issued its first request warrant 44 months after the Rome Statute entered into force (Lubanga); the military-commission system indicted its first detainee 31 months after Bush’s executive order and didn’t finalize the indictment until 41 months after that — a total of six years (Hamdan).  Trial began in the ICC’s first case four years after the arrest warrant was issued; trial began in the military commissions’ first case four years after the detainee was indicted (Hamdan).  The ICC’s first sentence was 14 years; the military commissions’ first sentence was seven years, with all but nine months suspended (Hicks).  The ICC has brought charges against 28 suspects; the military commissions have brought charges against 13 detainees.  The ICC costs $100,000,000 per year; Guantanamo costs $150,000,000 (although some of that is obviously not chargeable against the commissions).

If the ICC is absurd, what does that say about the military commissions?

Weekday News Wrap: Friday, July 13, 2012

by Jessica Dorsey

Weekday News Wrap: Thursday, July 12, 2012

by Jessica Dorsey

Yale Creates the First American PhD in Law

by Kevin Jon Heller

As the rare American legal academic who has both a JD and a PhD in law (the latter, of course, from a law school outside the U.S.), I think this is an exciting development, for all the reasons that Jason Mazzone laid out nicely last year at Balkinization.  I imagine Yale’s PhD will be very popular, particularly given that the law school intends to fully fund its students, covering tuition and providing a stipend of $27,300 per year for three years (assuming satisfactory progress).

That said, I have some serious reservations about the structure of Yale’s PhD program.  The law school claims that “students will be generally expected to complete the program after three years,” although it says that “requests to extend the course of study beyond three years will be considered on a case-by-case basis.”  My prediction is that very, very few students will complete the program in three years.  PhD programs in law outside the U.S. are usually three or four years long — and they normally involve no coursework at all, other than a one-semester seminar on research methods.  By contrast, the entire first year of Yale’s PhD program will be dedicated to coursework and examinations:

Most students will dedicate much of their first year in the program to coursework.  Students will work with their advisory committees to select six courses that will best prepare them to carry out their research projects.  In cases where students have already completed the relevant graduate training, a student’s advisory committee may waive up to four of the required courses.

All first-year Ph.D. students will be required to take a two-semester pro-seminar on canonical legal scholarship and methodologies.  The first semester of the pro-seminar will be dedicated to reading and discussing canonical works of legal scholarship.  The second semester will be devoted to the presentation and discussion of student papers in a workshop format.  The pro-seminar, required of all Ph.D. candidates, will be the cornerstone of a genuine intellectual and professional community, serving as well as an opportunity for students working in different areas of law to interact with, and to learn from each other as well as the faculty leading these and other seminars and workshops. At the end of the second semester, all Ph.D. candidates will complete the first of two qualifying examinations. The pro-seminar will constitute the primary preparation for this first, written, examination. During their second semester and their first summer in the program, students will also work with their advisory committees to prepare for a second qualifying exam in their area of specialization.  Unlike the first qualifying exam, which measures the breath of a student’s knowledge, the second is an opportunity to demonstrate mastery of the candidate’s area of specialization. The second qualifying exam will be an oral examination, conducted by the faculty who serve on each candidate’s advisory committee, and will ordinarily be administered at the beginning of the third semester in the program.

Even for PhD candidates who have some of their course requirements waived, that is an incredible amount of work.  In practice, the courses and exams will mean that students will make no progress whatsoever on their dissertations in the first year of the program; indeed, Yale does not even expect students to finalize their prospectuses until early in their second year (when they will also be preparing for their oral examination).

Nor is that all.  Yale intends to require PhD candidates to complete “two semester-long teaching experiences” in their second year, a requirement that can be fulfilled by anything from serving as a teaching assistant to (in rare cases) teaching a course of the student’s own devising.  Serving as a TA may not be that time-consuming, but co-teaching or solo-teaching certainly is — particularly when teaching a course for the first time.  At least a big chunk of the second year of the PhD program will thus be dedicated to non-dissertation-related work.  Finally, just to make matters worse, students will then “generally” be expected to go on the job market in their third year.  So just as they are getting into the swing of writing, they will need to navigate the meat market and prepare job talks.  (Yale also mentions the possibility of students completing another teaching experience in their third year!)

In my experience, writing a good 80,000-120,000 word dissertation takes PhD students at least three years.  That is what it takes our very best doctoral students — and they have none of Yale’s extra requirements to complete.  That is probably why the law school intends to give its PhD candidates a choice between writing a “book-length manuscript” (of unspecified length) or “three, significant, publishable articles that might appear in a leading law review.”  My guess is that nearly all students will select the second option — and will still struggle to complete the required three articles by the end of their third year, unless Yale will be willing to count toward the degree the 8,000-12,000 word articles that are the norm outside of the U.S.  How many seasoned law professors churn out three 25,000 word law-review articles in 18 months?

Again, I am glad that Yale has created a PhD program in law.  I just hope (and fully expect) that the law school will be willing to fund a fourth year for the students it accepts into the program.  They’re going to need it.

PS. I would greatly appreciate opinions from our readers who, like me, have PhDs in law from outside the U.S.

PPS. Marko Milanovic points out in the comments that there will be a professional bias in the program toward the three-articles option: whereas students will be able to publish articles before going on the job market in the third year, that will not be the case for a book.  I’d add that the bias will be even greater, because American legal academia does not value books anywhere near as highly as legal academia in the rest of the world — a reflection, I think, of the ridiculous length of American law-review articles.  I think that’s a shame, because writing a book was by far the greatest academic and intellectual experience of my life.

James Crawford: The EU May Ban Imports from the West Bank

by Kevin Jon Heller

The Independent has the story:

European governments, including Britain’s, have received legal opinion from a leading international counsel who argues they would be fully within their rights to ban trade with Israeli settlements in the occupied West Bank.

The formal opinion from James Crawford, professor of international law at Cambridge University, is likely to inject fresh momentum into campaigns in the United Kingdom and elsewhere for a ban, at a time when some EU member states are examining ways of hardening their position on the imports of settlement produce.

Israeli settlements in the West Bank are considered illegal under international law, a position upheld by all EU member states.

In particular the opinion will be seen as challenging received wisdom in official circles that for a state such as Britain to ban imports of settlement produce, or prohibit banks from financing settlement activity, would contravene European or global trade law. Professor Crawford says in his 60-page opinion, shown to senior officials of EU member states in the past few months and seen by The Independent, that “there do not appear to be any EC laws which could be breached by a member state taking the decision to ban the import of settlement produce on public policy grounds.”

He argues that member states wishing to block the import of produce from settlements could “have recourse” to the EU’s Association Agreement with Israel, which stipulates that the agreement “shall be based on respect for human rights and democratic principles.” He argues that, by executing such a ban on trade with settlements, the EU would not be in breach of its World Trade Organisation obligations since, “as a matter of international law, the West Bank and Gaza cannot be considered to be Israel’s territory”.

Crawford’s conclusions will no doubt infuriate Israel, which recently described South Africa’s ban on imports from the West Bank labeled “Made in Israel” as having “characteristics of racism.”  If Israel believes that requiring it to accurately label settlement products is racist — which, of course, it’s not — I hate to imagine what language it would use to describe a complete ban on settlement products, even those that are accurately labeled.

Crawford’s report can be downloaded here. I was particularly struck by its final paragraph, in which Crawford says the following:

Unfortunately, the present reality of the political situation in Palestine is such that it is unlikely that any adverse legal ramifications will result from States or private entities continuing to engage with the unlawful settlements. As noted by the [ICJ] in its Namibia judgment: “the qualification of a situation as illegal does not by itself put an end to it.  It can only be the first, necessary step in an endeavor to bring the illegal situation to an end.” Regrettably, the political will does not seem to exist at present to enforce principles of international law in respect of the settlements.

Wise words.  And strong ones — especially coming from a renowned international law scholar who is anything but a radical leftist.

Weekday News Wrap: Wednesday, July 11, 2012

by Jessica Dorsey

Weekday News Wrap: Tuesday, July 10, 2012

by Jessica Dorsey

Lubanga Sentenced to Fourteen Years

by Kevin Jon Heller

Thomas Lubanga Dyilo, the first person convicted at the ICC, has been sentenced to fourteen years in prison.  From the Court’s press release:

Today, Trial Chamber I of the International Criminal Court (ICC) sentenced Thomas Lubanga Dyilo to a total period of 14 years of imprisonment. The Chamber, composed of Judge Adrian Fulford, Judge Elizabeth Odio Benito and Judge René Blattmann, also ordered that the time from Mr Lubanga’s surrender to the ICC on 16 March 2006 until today should be deducted from this sentence. Mr Lubanga Dyilo was found guilty, on 14 March 2012, of conscripting and enlisting children under the age of 15 and using them to participate in hostilities in the Ituri region in the Democratic Republic of the Congo, from 1 September 2002 to 13 August 2003.

Readers can find an excellent summary of the decision at IntLawGrrls here.  Fourteen years seems about right given the relatively unserious nature of the war-crimes charges against Lubanga (compared to things like murder and rape), although the sentence no doubt comes as a disappointment to the OTP, which asked for 30 years.  Lubanga’s six-year incarceration means that he will be a free man at a relatively young age; in fact, pursuant to Article 110(3) of the Rome Statute, the Court will review his sentence for possible reduction in just five years.

Scholars and NGOs have consistently criticized Moreno-Ocampo for not charging Lubanga with more serious crimes.  Indeed, because Lubanga was facing much more serious charges in the DRC — genocide and crimes against humanity, including murder — I cite his case in a recent article as a primary example of why the ICC’s “same conduct” test for complementarity is counterproductive.  The traditional defense of Moreno-Ocampo’s decision was that the conscription and enlistment charges were relatively easy to prove, making it likely that the trial would result in a quick and unproblematic conviction.  As regular readers know, reality proved to be far messier (see, for example, here and here).

I wonder whether Moreno-Ocampo is regretting his decision not to pursue more serious charges…

Final days to complete the Readers’ Survey

by An Hertogen

Dear Readers,

thank you very much to all our readers who have already taken the time to complete our Readers’ Survey. The survey closes at midnight on July 12, Pacific time, so we hope that those who haven’t had a chance to complete it yet, will do so soon. Your feedback is important to us! At the end of the survey, you have the option of entering your e-mail address in the prize draw to win a $100 Amazon gift voucher. The winner will be announced next week, and we’ll also post about the results next week.

Many thanks from the Opinio Juris team!

Is American Foreign Policy Christian? A Conversation with Andrew Preston

by Peggy McGuinness

Over at the St. John’s Center for Law and Religion Forum, my colleague Mark Movsesian has posted a fascinating conversation with Professor Andrew Preston (Cambridge), author of Sword of the Spirit, Shield of the Faith.  Preston’s book examines the role faith has played in the conduct of U.S. foreign and military policy over the course of our history.  In this review of the book, Mark discusses the religious theme in American foreign policy that Preston has identified as “Christian republicanism,”

 which Preston defines as “a blend of Protestant theology and democratic politics.” This worldview prizes religious liberty as the foundation of democracy and views it as the most important of human rights. Indeed, Preston shows how the protection of religious liberty abroad has been a constant theme in American diplomacy. In the nineteenth century, the State Department advocated for missionaries, including Mormons, with foreign governments, even though the Department often found the missionaries a nuisance. In the twentieth century, Henry Kissinger’s attempts to get Congress to grant the Soviet Union most-favored-nation status failed largely because Kissinger underestimated American sympathy for the plight of Soviet Jews.

Preston explains how religion influences the U.S. approach to international human rights:

CLR Forum: Sword of the Spirit shows that religion has had a complex influence on American foreign policy. Christian convictions have justified both isolationism and internationalism, sometimes in the thought of the same person, e.g., John Foster Dulles. Do you see these same tensions today? On what issues do the contemporary religious right and religious left disagree? On what issues do they agree? 

Preston: I think the religious right and left, and Protestants, Catholics, Jews, and others all agree that America should promote and protect basic universal human rights around the world. What is remarkable is the extent to which religious isolationism has more or less disappeared. Most religious communities agree that the United States should engage with the world to promote its ideals; they just disagree on how this should be done. Religious liberals are wary of military intervention, religious conservatives less so.

CLR Forum: Protestant missionaries were the first international human rights campaigners in American history. Of course, today’s human rights discourse is almost entirely secular. And yet you note that, just like the nineteenth-century missionaries, today’s secular human rights campaigners sometimes fail to recognize that their ideology is not really “universal.” Could you please elaborate on this? 

Preston: We often assume that because some things seem so abhorrent, revulsion for them must be universal. Yet often these practices are not only tolerated but embraced by other cultures. When Western reformers—be they yesteryear’s missionaries or today’s human rights NGOs—enter a foreign country and demand the cessation of certain practices, they are automatically engaging in a kind of cultural imperialism by changing local custom in the name of a universal ideal, even though the locals have never heard of this universal ideal. A good analogy would be between the anti-foot binding crusades by American missionaries to China in the late 19th century and anti-female circumcision campaigns by human rights advocates today. I happen to agree with the morality of both these causes, and I happen to find foot-binding and female circumcision morally repugnant, and I think most Westerners would agree with me. But putting our views into practice means obliterating local cultures around the world. The end result might be a more just world, but we shouldn’t fool ourselves into thinking that we aren’t practicing a kind of cultural imperialism by obliterating the local in favor of the universal. The irony is that many human rights campaigners today try to distinguish themselves from the supposedly aggressive missionaries of the past, but to me they seem more alike than different.

The full conversation is well worth a read, especially Preston’s (surprising?) conclusion that Obama is quite similar to FDR in his religious convictions, outlook, and policy emphasis on religious freedom.

Weekday News Wrap: Monday, July 9, 2012

by Jessica Dorsey

Upcoming Events: July 8, 2012

by An Hertogen

Conferences & events

  • On Wednesday July 11, the Brookings Institution is organizing Translating Human Rights into Practice: A Conversation on the United Nations Human Rights Council in the Saul/Zilkha Rooms, 1775 Massachusetts Ave, NW, Washington, DC. For more information and registration, please click here.
  • On July 18, the Center for Human Rights and Humanitarian Law at American University, Washington College of Law, is organizing a webinar on the human rights implications of key decisions by the US Supreme Court in its 2012 term. To register your interest, please RSVP here.
  • The International Court for the Environment Coalition will be introduced at a reception at 6.00 pm on Thursday 19th July at the World Federalist Movement-Institute for Global Policy, 708 Third Avenue, 24th Floor, New York City. The ICE Coalition has grown out of the recognition that the most serious environmental problems extend across international boundaries, and that current international laws and institutions are unable to deal with them effectively. This gap in international environmental governance is a major contributor to the continued worsening of environmental challenges facing the global community. The main speakers at the event will be Stephen Hockman QC, former President of the United Kingdom Bar Council and founder of the Coalition, which is spearheading the international campaign to create an International Court for the Environment, and Murray Carroll, researcher with the Global Environmental Governance Project and graduate student at Harvard University.  You can RSVP here.
  • The ABA Standing Committee on Law and National Security is sponsoring a series of programmes during the ABA Annual Meeting in Chicago in early August.
    • August 2: “Nuremberg Revisited: Its Lessons for Today”, moderated by Daniel B. Rodriguez.
    • August 3: “Cybersecurity: the Legal Puzzle”, moderated by Harvey Rishikof
    • August 4: “Critical Issues in National Security Law Over the Past 50 Years: Past, Present and Future”, moderated by James McPherson.
    • August 4: “The Renewed Trials by Military Commissions Under the Obama Administration: An Historical Perspective”, moderated by Major General (ret.) John Attenburg.

Calls for Papers

  • Undergraduate and postgraduate students have one more week to send in papers of maximum 35 pages for the Ronald St. John MacDonald Award awarded by the Canadian Council on International Law.
  • Transnational Dispute Management (TDM) has issued a call for papers for a special issue on “Legal Issues in Tobacco Control“, edited by Professor Andrew Mitchell and Associate Professor Tania Voon (Melbourne Law School). This special issue will examine legal issues surrounding international related disputes arising from tobacco regulation and control. Proposals for papers should be submitted to the editors by September 15, 2012.

Last week’s announcements can be found hereIf you are organizing a conference or other event and would like to see the call for papers or the program announced on Opinio Jurisplease contact us.

Chart of the Day — Paid Leave and Paid Holidays in OECD Countries

by Kevin Jon Heller

Courtesy of the European Trade Union Institute.  I have no significant commentary to add, other than to say that I’m glad I live outside of the U.S.  Here is the chart:

Hat-tip: The Atlantic.

Weekend Roundup June 30-July 6, 2012

by Jessica Dorsey

This week on Opinio Juris, we had Kevin Jon Heller weighing in on Melinda Taylor’s release in Libya and offering thoughts related to whether she should be prosecuted there. Additionally, Kevin Jon proposed a thought experiment regarding ICC-State cooperation in response to the Melinda Taylor situation and gave an analysis offering more evidence as to why Libya is unable to prosecute Saif al-Islam Gaddafi with regard to its admissability challenge to the ICC, which he urged the Pre-Trial Chamber to reject until Libya could demonstrate control over Saif. Finally, Heller pointed to a recent essay by Marjolein Cupido, recently appearing in the Criminal Law Forum regarding the rhetoric of the policy requirement for crimes against humanity.

Chris Borgen highlighted international law in literature, pointing to the Daredevil story arc and analyzing the rights to a fair and public hearing therein. Julian Ku posted about the Obama/Romney War on Terror, looking at each candidate’s standpoint on foreign policy in light of the upcoming election. Duncan Hollis offered some insights into July as Arms Trade Treaty Month, illustrating some issues related to developing such a treaty, while Kenneth Anderson summarized a letter sent by some 130 US lawmakers warning the Obama administration about an arms treaty before he posted about the negotiations process and the problems of consensus for a hegemonic player.  

We hosted a Symposium for the Leiden Journal of International Law’s Volume 25:2, wherein two discussions arising from the contents of the Volume took place. The first, involving Mario Prost and Alejandra Torres Camprubi’s Against Fairness? International Environmental Law, Disciplinary Bias and Pareto Justice, has a thought-provoking response from Karin Mickelson mostly agreeing with what the article had to say but also highlighting the understated problem of engagement with common but differentiated responsibilities (CBDRs) from the perspective of the global South. Additionally, Eric Posner offers insight into Prost and Camprubi’s claims in the article involving Posner’s book (written with David Weisbach–Climate Change Justice), and responds to them in kind before also critiquing a few substantive points within the article itself. Prost and Camprubi take the opportunity to respond to many of Posner’s points as well as addressing Mickelson’s issue with CBDRs.

The second discussion involved Nico Krisch’s book, Beyond Constitutionalism: The Pluralist Structure of Postnational Law. Tom de Boer reviews the book in the LJIL volume and Daniel Halberstam offers a commentary on the book as well as on De Boer’s review. Nico Krisch responds to the critique raised in De Boer’s review, specifically addressing its constitutionalist nature and internationalist outlook. Finally, Tom de Boer offers his reaction to both Krisch and Halberstam in his post analyzing how radical pluralism bites its own tail.

And another reminder: it’s still not too late to participate in our readers’ survey and enter the sweepstakes to win a $100 Amazon gift voucher.

Thank you very much to our guest contributors and have a nice weekend!

Melinda Taylor Discusses Her Detention

by Kevin Jon Heller

Not surprisingly, Taylor insists that she did nothing wrong — and that Saif Gaddafi cannot possibly get a fair trial in Libya.  First, regarding the so-called “coded letter,” which has always been the most bizarre Libyan allegation:

AUSTRALIAN lawyer Melinda Taylor says documents considered “coded” by Libyan authorities who jailed her were simply innocent doodles.

[snip]

After her release on Monday, Ms Taylor went straight back to work, emerging on Friday to declare in the Netherlands that her actions in Libya were consistent with legal obligations under court rules.

Ms Taylor said the papers she had were legal documents and the alleged codes were innocent items, including Gaddafi’s nickname, which could be found by keying it in to an internet search engine.

Second, concerning the Libyan’s blatant breach of attorney-client privilege:

“Irrespective of any issues concerning my own personal conduct, the rights of my client, Mr Seif al-Islam, were irrevocably prejudiced during my visit to Zintan,” she said.

“It is the position of the defence that these recent events have completely underscored that it will be impossible for Mr Gaddafi to be tried in an independent and impartial manner in Libyan courts.”

Ms Taylor said that during her detention, she was never given a decision on the legal basis for her arrest or for the search and seizure of privileged documents.

“Amongst other things, the Libyan authorities deliberately mislead the defence concerning whether the visit with Mr Gaddafi would be monitored,” she said.

She said authorities also “seized documents which were covered by legal professional privilege and ICC protective orders”.

Taylor says she will file a complete written report with the Court by next Wednesday, so I will delay substantive analysis until then.  But her initial report is certainly unsettling.  I don’t know what’s worse, Libya’s willingness to surreptitiously monitor attorney-client meetings or its inability to distinguish doodles from code.

I will be interested to see if Taylor comments on the ICC’s apology for her actions.  The Australian media is already in full-on hagiography mode, publishing articles that explain how Bob Carr swooped in on his white horse and saved Taylor from a life of detention and hard labor.

LJIL Symposium Vol 25-2: Beyond Constitutionalism – How Radical Pluralism Bites Its Own Tail

by Tom de Boer

[Tom de Boer is a Candidate, Research Master Public International Law at the Amsterdam Law]

This post is part of the Leiden Journal of International Law Vol 25-2 symposium. Other posts in this series can be found in the related posts below.

To start, I want to thank Nico Krisch for his fair and enlightening reaction to my review essay and the clarifications on his book, and Daniel Halberstam for his interesting contribution to this debate.  Below I will try to analyze the positions of both scholars, react on both commentaries, and clarify my own position on the issue of legal pluralism addressed in Krisch’s book, Beyond Constitutionalism: The Pluralist Structure of Postnational Law.

As I note in my review essay, Krisch’s book revolves around the question how best to deal with postnational law, that is characterized by a proliferation of international organizations and fields of international law in which states lose more and more of their sovereignty. This process of internationalization puts strains on democratic decision-making processes at the national level and could potentially lead to alienation from the international legal order of both states and their citizens.

How should this problem of an ever-growing messiness at the international level  be addressed from a legal perspective? And what should be the relationship between the legal orders – international, regional and national – that are part of this constellation of postnational law? With his plea for radical pluralism Krisch has positioned himself at the far-end of the spectrum in the debate that flows from these questions. His view constitutes a break with the constitutionalist approach, which aims for a transfer of the qualities of national legal systems – such as a clear hierarchy and enforcement mechanisms of legal rules – to the international level. Krisch aims for an international legal order which is founded on a pluralism that ‘eschews ultimate authority and overarching conflict norms’, in which also the nature of the relationship between the different suborders is principally unsettled.

Continue Reading…

LJIL Symposium Vol 25-2: Beyond Constitutionalism – Pluralism’s Promise

by Nico Krisch

[Nico Krisch, Professor of International Law, Hertie School of Governance; currently Visiting Professor of Law, Harvard Law School.]

This post is part of the Leiden Journal of International Law Vol 25-2 symposium. Other posts in this series can be found in the related posts below.

Tom de Boer’s review of my recent book, Beyond Constitutionalism: The Pluralist Structure of Postnational Law, presents not only a careful analysis, but also a direct challenge to its normative thrust. This gives me an opportunity to defend and clarify my views, and I am grateful to the editors of the Leiden Journal of International Law for allowing me to do so in this Opinio Juris discussion.

De Boer’s critique is constitutionalist in nature and internationalist in outlook. What he finds most troubling in the book is that the pluralist structure I defend may allow national courts to question international law’s authority on dubious – particular rather than universal – grounds. The potential danger of pluralism, he argues, is much broader than what emerges from the relatively benign examples in the book: pluralism may open Pandora’s box to all kinds of problematic action by domestic political and judicial bodies and thus undermine the force of international rules. A constitutionalist order, in de Boer’s view, would be better able to protect international law and institutions from such unwarranted challenges.

This portrayal of the potential consequences of a pluralist order is not implausible. Pluralism as I see it eschews ultimate authority and overarching conflict norms, and it grants different parts of the global legal order the space to distance themselves from the others. It creates an interplay of suborders in which the relationships are defined from within each suborder, both as between different international regimes and between different layers of law in the interaction of national, regional, and international orders. There is no overarching, hierarchical frame that would order their relations, and consequently no external legal constraint that would keep the suborders from getting it wrong.

Continue Reading…

Weekday News Wrap: July 6, 2012

by An Hertogen

LJIL Symposium Vol 25-2: Beyond Constitutionalism? – A comment by Daniel Halberstam

by Daniel Halberstam

[Daniel Halberstam, Eric Stein Collegiate Professor of Law and Director, European Legal Studies Program, University of Michigan Law School.  External Professor, College of Europe, Bruges]

This post is part of the Leiden Journal of International Law Vol 25-2 symposium. Other posts in this series can be found in the related posts below.

Nico Krisch’s justly award-winning book thoughtfully elaborates on an approach to global governance that he sometimes calls “radical pluralism.”  His basic point is that politics, not law governs the relationship among the different legal systems and regimes. Beyond Constitutionalism offers the reader a valuable overview of a dense, often messy topic, deftly weaving through ample case studies and secondary literature.

Krisch’s argument in favor of pluralism is extremely careful – indeed it is cautious to a fault.  The dizzying collection of conditional statements, disclaimers, and passages highlighting difficulties with pluralism leaves the reader wondering just how strong the case for radical pluralism really is.  Nonetheless, on the basis of numerous ties and razor thin calls (Cf., e.g., at 276: “None of this allows for ultimate conclusions about pluralism’s and constitutionalism’s respective virtues when it comes to democratic governance” or at 280 “As regards predictability and argumentative rationality then, pluralism does not necessarily fare worse than constitutionalism.” (italics mine)), Krisch sums up his book in the end as having presented a “provisional . . . but relatively strong case for the pluralist vision.” (302)  How so?  How can a series of barely detectable advances amount to a “strong case” in the end?

The answer lies in the word “relatively.”  The case for the pluralist vision is “strong” only when judged “relatively” against the particular “constitutional” vision that Krisch features as the steady point of contrast throughout his book.

As Tom De Boer’s commendable review explains, Krisch has chosen as his foil a rather wooden conception of constitutionalism against which to size up the case for pluralism.  To be sure, Krisch opens with a nuanced discussion of competing visions of constitutionalism, both past and present.  But he quickly settles on “foundational constitutionalism,” with its roots in the radical revolutions of the 18th Century, as the alternative against which he argues in favor of his brand of pluralism.  The foundational vision of constitutionalism sees radical politics as creating a comprehensive legal framework that, in turn, grounds and limits all politics and all exercises of public power.

Continue Reading…

The Obama-Romney War on Terror

by Julian Ku

Polls show that President Obama’s handling of foreign policy is one of his advantages over Republican challenger Mitt Romney.  And it will indeed be difficult for Romney to challenge President Obama on his war on terror policies.  Not only are they seen by the public as successful, they are also not that different from policies Romney himself would pursue.

Is there any reason to doubt that a President Romney would use drone attacks as aggressively as President Obama? Is there any reason to think a President Romney would close Guantanamo Bay any faster than President Obama?  And is there any indication that President Romney would eschew the “outsourcing” of detention to third countries where conditions are, to put it mildly, much worse than Guantanamo ever was?

This last claim is actually the least well-sourced.  But according to Eli Lake in the Daily Beast, the U.S. has been turning over suspected pirates and Al-Qaeda affiliated terrorists to the Somali prison, where facilities are far less than adequate.  And it is reasonable that the U.S decision to stop bringing new detainees to Guantanamo has and will continue to result in the need to send detainees to countries with far less humane facilities.

Critics from the right, like Jack Goldsmith, suggest that the need to use prisons in Somalia and other countries to detain suspected terrorists means there probably is a policy tradeoff between using drones (Obama’s preferred approach) vs. detentions (Bush).  This is likely to eventually evolve into a Romney talking point, even though it will likely be small one and unimportant one.

As Jamie Kirchick points out here, the real political danger for President Obama’s policies would be from the left.  But while I wouldn’t call Harold Koh a hypocrite (as Kirchick does) for defending a general war approach that he criticized under Bush, I would say that Koh and other groups have provided Obama with plenty of cover on his left flank.  And President Obama has largely gotten a free pass from European allies (although he is getting some flak from the UN).

What is interesting, therefore, is that if Romney wins, he will have wide policy discretion to conduct an aggressive war on terrorism akin to that pursued by President Obama.  And if Obama wins re-election, well the same applies.  The Bush-Obama-Romney consensus would probably spell the beginning of the end of serious political dispute in the U.S., and perhaps around the world, of the propriety of US war-on-terror policies.  Not sure that is what President Obama intended, but there you go.

The Arms Treaty Negotiations and the Problems of Consensus for a Hegemonic Player

by Kenneth Anderson

OJ’s esteemed commenter Martin Holterman asks in the comments to my earlier post about the Arms Treaty negotiation underway in New York what the point of negotiating a treaty is, if you assert in advance (and indeed attach to the treaty) that there cannot be any circumstances in which you might violate it.  He asks this with reference to a letter sent Monday from Congressional lawmakers (some 130 of them) to the Obama administration.  The short answer is that if those are your objections, then you really ought to stay out of the process, which is certainly my view.  (We should add that this has been a fairly standard procedure for the US in certain kinds of treaty negotiations where it is clear that Constitutional standards are implicated.)  But this raises some general issues regarding the nature of consensus negotiations, which I take up in this post, using the arms treaty negotiations as a backdrop and drawing on Chapter 2 of my new book, Living With the UN.

The Bush administration, as Duncan’s earlier post observed, opposed the treaty negotiation process and instead favored strengthening national export regimes.  I thought it was a better way to deal with the issues of arms trade as such; I always thought it a mistake for the Obama administration in 2009 to agree to engage in the process at all.  One reason the Obama administration decided to join treaty negotiations, however, is owed to the early Obama administration’s overall desire to engage multilaterally, especially through the UN and international organizations. It’s part of this administration’s general patten of multilateral engagement – with the Human Rights Council, most controversially, but lots of other exercises in “values” processes at the UN as well.  I’m not alone in detecting a tension inside the (first two years anyway) Obama administration between its liberal internationalists, who took multilateral engagement seriously as its own value, on the one hand, and what I’ve sometimes called its “New Liberal Realists,” on the other.

The liberal internationalists of the administration’s first two years or so thought the “values” exercises meant something for their own sake and so should be undertaken.  The New Liberal Realists, by contrast, seemed to have taken the view that if the US could gain points by engaging in values processes, fine, because it didn’t finally matter.  Being mere ideological exercises in words, they didn’t actually mean anything in tough realist terms.  Talk is cheap and you can always walk away or come up with some covering interpretation.  In a (yes, provocatively titled) chapter in my book, “Disengage and Obstruct,” however, I argue that these exercises in supposedly cost-free multilateral engagement around values issues are rarely cost-free for a hegemonic player.  Talk might be cheap but it’s not without a price, because it’s an accumulating, even if imperfect and weak, proxy for whether the hegemon means other things it says.

The New Liberal Realist claim amounts to saying that no one takes the “values” talk seriously or as a proxy for “realist” matters of security, hard core economic issues, etc.  I would respond that this misunderstands the peculiar nature of hegemony, and the way in which it transcends realism by using “values” issues to transform raw power into authority and finally hegemonic legitimacy. (Beyond that, I won’t try to define hegemony here.)  Realists, we can say in passing, are often not conceptually equipped to understand legitimacy save as on a narrow, transactional, marginal basis – blinders which makes it hard to understand the persistence of hegemony, which depends upon a particular relationship between interests and values, power and authority, and finally legitimacy.   Continue Reading…

LJIL Symposium Vol 25-2: Fairness in International Environmental Law – Against Fairness? A Response to Mickelson and Posner

by Mario Prost and Alejandra Torres Camprubi

[Mario Prost is a Senior Lecturer at Keele Law School (UK) & Alejandra Torres Camprubí is a Research Fellow at the  Faculty of Law of the Universidad Autónoma de Madrid]

This post is part of the Leiden Journal of International Law Vol 25-2 symposium. Other posts in this series can be found in the related posts below.

We would like to thank the symposium organizers and contributors for providing an opportunity to discuss some of the arguments we make in our recent article ‘Against Fairness? International Environmental Law, Disciplinary Bias, and Pareto Justice’. In this article, we take issue with International Environmental Law (IEL)’s traditional neglect for considerations of distributive justice and its bias against the South – a bias first noted by Mickelson more than a decade ago in a groundbreaking article. We also consider the more recent and more direct attack from law and economics scholars against the notion that considerations of justice should play a role in the design of environmental regimes – an attack developed in its most systematic and methodical form by Posner and Weisbach in their Climate Change Justice. We are very pleased that Mickelson and Posner agreed to comment on our article and to be given a chance to respond to them.

Let us start with a point of clarification. In his response, Posner takes offence at the fact that his work is characterized as representative of conventional IEL scholarship, something he finds ‘far more wounding’ than any of our substantive criticisms. Whilst we sympathise with Posner (no one likes to be called conventional), the characterization is not ours and the point we make in our article is not that Posner and Weisbach are in the mainstream. We simply observe that, in addition to IEL’s quiet disregard for the South, a far more blunt and direct attack has been launched by law and economics scholars against the Third World’s claims of environmental justice. To be clear, we feel that Climate Change Justice does share much in the mainstream’s prejudice against the South, if only in its stereotypical depiction of ‘the poor’ making ‘unrealistic demands’ on industrialized countries and asking them to pay ‘simply because they are rich’. At the same time, we appreciate that, normatively, Posner is as far as it gets from the mainstream and its narrative of heroism.

In fact, Posner’s attitude is perhaps best understood as the mainstream’s perfect opposite. The IEL mainstream, as we try to demonstrate in our article, pretends to care about justice whilst continuing to use concepts, representations and a vocabulary which are intrinsically biased against the South. There is a form of hypocrisy at play – a Tartuffery almost –which, like Mickelson, we find ‘outrageous’ and ‘angering’. In contrast, Posner does talk about fairness, and at length, whilst pretending not to. What Posner calls ‘pragmatism’ and ‘realism’ may not look like fairness talk, yet fundamentally it is just that. The important point of course is that the fairness Posner advocates is fairness American style, a fairness which demands conveniently forgetting past wrongs because they are too complex to remedy, looking at carbon flows rather than carbon stocks, and rejecting per capita emissions as a principle of distribution because of their ‘politically unacceptable’ cost for large emitting nations. Posner’s work is thus not hypocritical in the way that conventional IEL can be. It is, however, political (we do not regard this as a bad thing) and in our view serves the same Western interests that the IEL discipline generally serves, only more blatantly.

Continue Reading…

US Lawmakers Send Letter to Obama Administration Warning on Arms Treaty Negotiations

by Kenneth Anderson

The Hill (a DC newspaper covering US Congress and government) reports that some 130 US Congresspeople have sent a letter to the Obama administration objecting to various aspects of the just-started UN Arms Treaty negotiations in New York and warning the administration against what the lawmakers regard as infringements on US citizen gun rights or US sovereignty.  I thought I would add it as a new entry following Duncan’s excellent summary and links of the treaty negotiations; the text of the letter is here.  In this post, I summarize the letter’s objections, and in a second post, I’ll add a broader discussion of the problems of consensus international negotiations for the US, based in part around part of my book on US-UN relations.

The letter’s main concerns are (I’m summarizing a bit loosely here for clarity):

  • No dilution of US Constitutional protections under the 2nd Amendment (or other existing US laws protecting gun rights, whether at the state or federal level);
  • recognition of an individual right of personal self-defense;
  • no dilution of what the signatories regard as US national security and foreign policy interests, particularly transfers to Taiwan and Israel;
  • no treaty recognition of terrorist right to weapons, including through the language of “resistance to foreign occupation”;
  • no creation or recognition of jurisdiction of the ICC over treaty signatories;
  • no damage to US economic interests through such vehicles as new regulatory regimes imposing compliance burdens on businesses or other mechanisms, direct or indirect, or export control regimes different from what the US does or would otherwise do;
  • reservations and understandings, should the US join the treaty, that the US is already in compliance with the treaty and that no changes to US policy or procedure are required, that the treaty cannot alter the Bill of Rights or the allocation of power in the US federal system, and that the treaty cannot shift authority from US agencies to any international body;
  • asserts (but also demands recognition) that the treaty is non-self-executing and requires legislation to implement; and
  • demands that should any of the above legal-policy requirements not go the US’s way in negotiations (which would seem, well, pretty likely), the US should “break consensus and reject the treaty.”

That’s quite a list.  I’m perhaps not the most neutral person to comment here, since I agree with this list in its entirety and would probably add a few more just to make sure a treaty could not turn into leverage for US domestic gun control advocates.  After all, the history of this international effort has always been the marriage (sometimes sotto voce, sometimes not) of arms transfer controls particularly into armed conflicts (which, broadly speaking and with some important exceptions, I’ve favored ever since the argument came up when I headed the Human Rights Watch Arms Division long ago) – and creating international legal devices to press for domestic arms control and especially handgun bans (which to say I don’t favor is something of an understatement).  I’ll leave the commentary on the substance of the positions above to another discussion – though there are interesting issues here, such as the claim of a personal right of self-defense (the letter is not clear whether it means it as a stand-alone international human right or instead as recognition of or deference to such rights as exist in domestic legal systems). But the letter is a pretty useful summary of the general objections that US domestic treaty opponents have to it – expressed as concerns, but let’s speak plainly, objections.

LJIL Symposium Vol 25-2: Fairness in International Environmental Law – Against Pragmatism?

by Eric Posner

[Eric Posner is Kirkland & Ellis Professor of Law and Aaron Director Research Scholar at the University of Chicago]

This post is part of the Leiden Journal of International Law Vol 25-2 symposium. Other posts in this series can be found in the related posts below.

Mario Prost and Alejandra Torres Camprubi’s article begins promisingly, with its criticism of IEL scholars’ “tacit disciplinary mindsets” which see international environmental law against all evidence as a “heroic and transformative project.”  But while one would have expected the authors then to launch a broadside against the idealistic tendencies in the IEL literature that have rendered most of it irrelevant to real-world policymaking, they pivot and criticize the literature for ignoring “fairness”—which is news to me.  The oddness of this approach is epitomized by their choice of target: my book (with David Weisbach), Climate Change Justice.  They are right to argue that we discount fairness in our book, but I do not think anyone would regard our book as representative of conventional IEL scholarship.  If that is their view, it is far more wounding than any of their substantive criticisms.

In any event, let me address these criticisms.  Prost and Camprubi argue first that we present the South “as an opportunistic negotiator” rather than as a “bona fide partner.”  I fear that we might get lost in semantics here, or the clubby rhetoric of diplomacy, but I regard all countries as “opportunistic negotiators,” out to seize the main chance, and willing to use whatever means available.  So if I say or imply that the South is “opportunistic,” I am treating southern countries as equals of the North, and resist the clichés so common among scholars, who take the rhetoric of (often authoritarian) countries at face value, and see developing countries as hapless victims or righteous spokesmen for justice.

Continue Reading…

Weekday News Wrap: July 5, 2012

by An Hertogen

LJIL Symposium Vol 25-2: Fairness in International Environmental Law – A comment by Mickelson

by Karin Mickelson

[Karin Mickelson is an Associate Professor in Law at the University of British Columbia]

This post is part of the Leiden Journal of International Law Vol 25-2 symposium. Other posts in this series can be found in the related posts below.

It seems a bit dull to kick off an online commentary with a resounding “I agree”, but that is precisely how I am tempted to respond to Mario Prost and Alejandra Torres Camprubi’s “Against Fairness? International Environmental Law, Disciplinary Bias and Pareto Justice.”  When invited to comment, I assumed that Prost and Torres Camprubi’s analysis would either represent a critique of views that I hold dear, thus giving me an opportunity to defend them, or at least overlook some of those views, and thereby provide an opening to express them.  Instead, I find that the authors have provided a succinct, persuasive and eloquent analysis of how international environmental law has treated questions of fairness in general, and the concerns of the global South, in particular.  Rather than focus on trivial areas of disagreement, I have chosen to highlight one aspect of Prost and Torres Camprubi’s analysis that I found particularly compelling, as well as one area where I feel that they perhaps did not go far enough in raising the alarm.

To begin with, I must commend Prost and Torres Camprubi for being willing to talk about the South at all.  For it seems that everywhere one turns these days, one is confronted with assertions of the meaninglessness of the North-South dichotomy and the need to move beyond outdated notions of this kind.  While this is not at all unfamiliar to those of us who lived through the so-called “end of theThird World”, I still find myself baffled by how widespread this perception is.  What is perhaps even more surprising is just how easy it seems to be to dismiss any assertions of Southern solidarity or commonality. There seems to be absolutely no embarrassment about characterizing these assertions as the products of either (a) a lack of awareness of drastically changed global circumstances, (b) a lack of intellectual sophistication, (c) blatant self-interest, or (d) all of the above.  Ironically, these dismissals of Southern solidarity seem to coexist quite happily with what Prost and Torres Camprubi characterize as an essentialist construction of the South that denies its plurality and diversity, papering over the differences between and within states.  (You would think that it would be impossible to have it both ways, but here’s how it’s done: when it comes to listening to some kind of collective voice or assertion of agency, there is no such thing as the South, but if you want to make sweeping generalizations about lack of environmental awareness, generic “developing countries” fit the bill.)

Continue Reading…

LJIL Symposium Vol 25-2: Introduction

by Leiden Journal of International Law

[Dov Jacobs is the Senior Editor for Expert Blogging at the Leiden Journal of International Law and Assistant Professor of International Law at Leiden University]

This post is part of the Leiden Journal of International Law Vol 25-2 symposium. Other posts in this series can be found in the related posts below.

In the next couple of days, this second LJIL Symposium brings to you two exchanges on articles published in Vol 25(2) of the Leiden Journal of International Law, on Climate Change and Legal Pluralism. As recent discussions on Opinio Juris show, these are topical issues and we hope that the following few days will contribute to the fruitful debate on these topics.

The first discussion revolves around Against Fairness? International Environmental Law, Disciplinary Bias, and Pareto Justice, the thought-provoking article by Mario Prost and Alejandra Torres Camprubi, with responses from Karin Mickelson and Eric Posner. While this constitutes the introduction to our symposium on Fairness in International Environmental Law (IEL), both authors raise issues that touch upon a number of considerations that are most relevant for international law in general. For one, they challenge the linguistic, and therefore ideological, biases of their colleagues. The rhetoric of progress and heroism that is in fact a mask on a patronizing view of the ‘other’, the ‘weak’ or the ‘victim’ is not specific to IEL. The fields of Human Rights and International Criminal Law are fueled in large part by such discourses and Manichean dichotomies of “good” Vs “evil”. The same is true of International Investment Law, which is structured by similar narratives on the greedy investor and the weak state representing the general public interest. It is therefore refreshing to see such self-reflection from the authors. Second of all, they discuss the role of fairness in IEL, specifically targeting its explicit exclusion by, among others, Eric Posner and David Weisbach in Climate Change Justice. Again, the question of what ‘fairness’ means as a philosophical and ethical concept, but most importantly its relevance as a legal norm, cuts across a number of fields of international law. The debate between the authors and Eric Posner illustrates the difficulty of approaching this issue. Indeed, while I agree with Prost and Camprubi that Posner, under the guise of pragmatism, is actually arguing another version of fairness, I would say that the substantial disagreement between them actually in itself proves Posner’s point. Because ‘fairness’ is not a monolithic concept in such a pluralist world, it will only be a relevant legal concept if some agreement can be reached on its content beforehand.

Which brings us to our second discussion, relating to The Limits of Pluralism, the thoughtful Review Essay by Tom de Boer of Nico Krisch’s Beyond Constitutionalism, the Pluralist Structure of Postnational Law. We are delighted that Nico Krisch himself, as well as Daniel Halberstam, two eminent participants in this debate, have accepted to contribute to the symposium. Continue Reading…

Weekday News Wrap: July 4, 2012

by An Hertogen

Cupido on the Rhetoric of the Policy Requirement

by Kevin Jon Heller

I want to take a break from Libya to call readers’ attention to an excellent essay by Marjolein Cupido, a PhD student at VU Amsterdam, that recently appeared in Criminal Law Forum. Many ICL scholars focus on the rhetoric of judging at the level of law — how judges construct and narrate the law that applies in a particular case.  Very few scholars, however, take the next step and ask how judges actually apply that law to the facts presented during trial.  That is a strange oversight; as we all know, there is a fundamental difference between constructing the law and applying it.  In part, the absence of attention to how judges apply law to facts likely reflects a commonly-held belief that, unlike lay jurors, judges are trained professions who can be trusted to reliably apply legal concepts — crimes, elements of crimes, modes of participation, etc.  Personally, I’m skeptical of that belief; having spent a great deal of time studying the cognitive psychology of how jurors interpret and misinterpret evidence (see here and here, if you’re interested), I find it very unlikely that judges will apply law to facts any more reliably than jurors.

Cupido’s essay on the policy requirement in crimes against humanity, which is part of a larger project on what she nicely calls the “casuistry” of international criminal law, supports my intuition.   The ICC’s definition of crimes against humanity contains a policy requirement, while the definition used by the ICTY and ICTR does not — the existence of a policy is merely an evidentiary consideration relevant to the systematicity of the attack on the civilian population.  If judges reliably applied facts to the law, we would expect those different approaches to affect the outcome of specific legal decisions.  As Cupido shows, however, in fact they don’t:

This article argues that the debate concerning the theoretical characterization of the policy requirement as either an element of crime or an evidentiary relevant circumstance for crimes against humanity is deficient. Comparative case law analysis illustrates that this characterization does not fundamentally affect the position, meaning and scope of the policy underlying crimes against humanity in judicial practice. This can be explained by the ‘‘open texture’’ of legal rules and the factor-based character of judicial decision-making. This article aims to initiate a practical debate that evaluates the added value of a policy element on the basis of its application in individual cases.

It’s a superb essay — well worth a read by anyone interested in ICL.  I look forward to the results of the rest of Cupido’s project, and I hope that other young scholars will turn their attention to similar topics.

Further Evidence that Libya Is Unable to Prosecute Saif

by Kevin Jon Heller

Now that Taylor is finally free, we can turn our attention again to the ongoing saga of who is going to prosecute Saif Gaddafi — Libya or the ICC.  A recent article in the Independent indicates that the correct answer may well be “neither”:

Ms Taylor said she was “very happy” to be able to return to her family. The proceedings on a hot and dusty afternoon also reinforced, however, the image of power the Republic of Zintan has projected since the overthrow of Muammar Gaddafi.

Ms Taylor had been guilty of trying to smuggle incriminating documents and a camera to Saif al-Islam, according to Alejmi Al-Atari, the militia chief who captured him. Commander Al-Atari also stressed later that the fallen dictator’s son will not be transferred to the government in Tripoli, let alone the ICC in The Hague. “He will be tried here, in Zintan for crimes, for all his oppression. Zintan can take care of justice for the Libyan people.”

Until recently, the Zintan battalions, which have more than 15,000 men under arms, “took care” of the capital’s airport, which is steadily opening up to foreign and domestic flights and becoming the main transport hub of the country. It is nominally now under the control of the Tripoli administration, but the Zintani presence is still very much there to see.

I’m not sure how a non-state actor holds a credible trial of Saif.  But it’s clear that, at least for the foreseeable future, Libya as a state remains “unable” to prosecute Saif for purposes of its admissibility challenge.  The Pre-Trial Chamber should thus reject that challenge until the Libyan government demonstrates that it has control over Saif.

Weekday News Wrap: July 3, 2012

by An Hertogen

  • Syria’s President Assad has expressed regret at the downing of the Turkish jet last month and has vowed to apologize should it be established that the jet was shot down in international airspace.
  • Human Rights Watch has released a report on arbitrary arrests, detention and torture in Syria since the beginning of the civil unrest in March 2011.
  • A Reuters article discusses how the failing of diplomacy in Syria is pushing some states to get more actively involved in the dispute. UN Human Rights Chief Navi Pillay has plead with states not to assist in the militarization of both sides to the conflict and has asked the UN Security Council to refer the conflict to the ICC.
  • Destruction of World Heritage Sites continues in Timbuktu, Mali. Militants have also placed landmines around the city of Gao, trapping the local population.
  • Australia’s Foreign Minister, Bob Carr, has suggested that Julian Assange’s extradition may not be so high on the US’ wish list anymore.
  • A proposal to create a whale sanctuary in the South Atlantic was blocked at the International Whaling Commission after Japan, China, Norway, Russia, Iceland, and several smaller countries voted down the idea.
  • The TPPA negotiators are meeting in San Diego for the 13th round of negotiations.

July is Arms Trade Treaty Month

by Duncan Hollis

At one time in the mid-1990s, it seemed like a week couldn’t go by without some large gathering of States seeking to hammer out the terms of a new multilateral treaty with aspirations for universal membership.  Such treaty negotiations have become a rarer phenomenon today with most meetings now emphasizing implementation of, and compliance with, existing treaties.  And where new norms are called for, treaties are no longer the default vehicle — many States now favor using political commitments (e.g., the Copenhagen Accord) as an alternative to the more traditional treaty form.

Still, from time to time, treaty negotiations and all the diplomatic machinations accompanying them return to center stage. July appears to be one of those times.  Starting today and running through July 27, the UN is launching a new treaty negotiation in New York for an Arms Trade Treaty.  The UN General Assembly first proposed such a treaty in December 2006 in its Resolution 61/89.  You can review a summary of the work of the preparatory committee since then here, including the Chair’s 2011 non-paper that outlines what an Arms Trade Treaty might look like.  A compilation of State reactions to the Chair’s non-paper is also available.

The pitch for an arms trade treaty is a simple one — there are treaties regulating almost every other good as it is traded across borders; as one pro-treaty NGO representative put it, “It is an absurd and deadly reality that there are currently global rules governing the trade of fruit and dinosaur bones, but not ones for the trade of guns and tanks”.  The argument goes on to suggest that this absence of regulations means that weapons can be traded to and misused by government forces or end up in the wrong hands of criminals, pirates, terrorists, etc., who then perpetuate death and destruction.

On the other hand, there are significant obstacles that may limit or obstruct any arms trade treaty. For starters, under the current rules of procedure, the treaty’s adoption will require consensus, meaning one State (think the US or Russia) could block it (it is possible though that a text supported by a sufficient number of States might be put before the UN General Assembly itself, which requires only a super-majority vote).  Second, as the UN’s Register of Global Reported Arms Trade indicates, there’s a lot of arms traffic (and thus money) at stake.  Thus, there is a wide array of stakeholders out there whose interests may not coincide with the sort of trade regulation that NGOs like Amnesty International envision.  Third, there’s a looming fight over whether to include ammunition within the treaty, which will obviously have a fairly significant impact on the proposed treaty’s scope.  And to the extent the treaty tries to regulate trade with specific actors (e.g., terrorists), there will undoubtedly be definitional and labeling issues that may make the treaty difficult to implement (for example, there is still no UN-accepted definition for terrorism).

As for the United States, the Obama Administration shifted course in 2009 and agreed not to oppose the current negotiations (which the Bush Administration had opposed in favor of better national controls).  Still, the US faces a few daunting issues in any arms trade treaty, most obviously, that any focus on arms, even one limited to regulating trade in arms, engenders 2nd Amendment concerns and domestic opposition from those who resist federal laws or regulations relating to guns (and this will be true I suspect even if the Obama Administration negotiates a text that it believes steers clear of any U.S. Second Amendment jurisprudence).  There’s also a question of continued US trade in arms to Taiwan and how the treaty would address whose law regulates the importation of weapons into Taiwan (with the possibility that the government of the People’s Republic of China might use any treaty to advance its position on Taiwan’s status).

In other words, there’s a lot on the table in New York this month.  And I’m sure this post has only scratched the surface.  So, I’d welcome reader input on other issues or views about the negotiations’ chances for success (or failure).  I’d also welcome any pointers to a daily digest of the negotiation’s progress along the lines of the invaluable IISD reporting service that serves such a wonderful updating and reporting role in the international environmental context.  I expect I’m not the only one interested in seeing how things progress.

A Thought Experiment About ICC-State Cooperation

by Kevin Jon Heller

I have to admit, I’ve been very surprised by the negative reactions I’ve received concerning my belief that the ICC should not have expressed regret or apologized to Libya for Melinda Taylor’s (alleged) misconduct.  It seems that most people — or at least most of the people who have emailed me — think that the Court should have done anything it could to get her back, even if its actions mean that defence attorneys will find it far more difficult to effectively represent their clients in the future.

I certainly understand the sentiment.  I am delighted that Taylor is free.  But I continue to believe that the statement and the apology were a mistake — and that the ICC’s willingness to bend over backwards to placate the Libyans was a reflection of defence attorneys’ second-class status at the Court and in international criminal law more generally.  Let’s not forget what the Court said in its original statement, which was supposedly about the need to free Taylor: “[t]he President underlined the shared interest of the ICC and the Libyan authorities that Saif Al-Islam Gaddafi and Abdullah Al-Senussi should face justice.”  The message was clear: it’s not nice to detain defence attorneys, but failing to prosecute suspects is even worse.

As I noted in an earlier post, I don’t expect people who have no experience with criminal defence to understand just how damaging the ICC’s actions have been.  So let’s turn the situation around and imagine a scenario that is all too possible — the detention of a prosecutor by a state being investigated for serious crimes:

High-ranking government officials in Rantania are widely believed to have orchestrated a genocidal campaign against an indigenous tribe suspected of supporting a rebel group funded by Aprophe, Rantania’s neighbor.  In early 2013, the Security Council refers the situation in Rantania to the ICC.  As part of the  Office of the Prosecutor’s investigation into the situation, a young prosecutor, Alexandra Evans, travels to Rantania on a fact-finding mission — talking to local human-rights NGOs, interviewing victims, and meeting with government officials.  After implying a bit too strongly that a particular government official was involved in the genocide, Evans is detained by the Rantanian intelligence service and her bag searched. Intelligence officers discover a list of suspects provided to her in confidence (and anonymously) by one of the human-rights NGOs.  Evans is promptly charged with espionage on the ground that the “accusations” on the list are an attempt by Evans and the NGO to subvert the lawful government of Rantania.  She is imprisoned and repeatedly interrogated concerning the identity of the NGO that gave her the list.

How would the ICC respond to such a situation?  Would the Court weakly assert that Evans was entitled to complete immunity from detention, search, and prosecution?  Would the Court quickly issue a statement expressing its “deep regret concerning any events that may have given rise to concerns on the part of the Rantanian authorities” and insist that the Court “has no intention of doing anything that would undermine Rantanian national security”?  When Rantanian government officials visited the Court to discuss Evans’ detention, would the Court “express its appreciation for the mutual trust confirmed in the meetings” and “welcome Rantania’s commitment to cooperate fully with the Court in accordance with the Security Council referral”?  Would the Court insist that it “takes very seriously the information reported by the Rantanian authorities,” “understands the importance of the espionage allegations to the government,” and “attaches great importance to the principle that its staff members, when carrying out their functions, should also respect national laws”?  Would the Court promise to “remain in close contact with the Rantanian authorities to inform them” of any progress it makes in its internal investigation of their espionage allegations?  And once Rantania finally agreed — after nearly a month — to release Evans, would the President of the Court travel to Rantania to apologize in person for Evans’ actions?

Unless you can answer each and every question with a resounding “yes,” the conclusion is inescapable: the ICC’s willingness to appease Libya is due, at least in part, to the fact that Melinda Taylor is a defense attorney, not a prosecutor.

To Prosecute Taylor or Not To Prosecute Taylor — That Is the Question

by Kevin Jon Heller

In my previous post, I noted that Libya’s representative to the ICC unequivocally acknowledged that Libyan courts could not prosecute Taylor for the alleged misconduct that led to her detention.  Apparently, not all Libyan officials are on the same page; witness what a “senior member of the Libyan attorney-general’s office” told the BBC earlier today about Taylor and the others:

“They are due to face the courts here in Tripoli for the final ruling” on 23 July, the source said.

“We expect them to come back for the hearing but if they don’t, a ruling will be made in absentia,” the source added.

That doesn’t sound like immunity to me!  It’s very unlikely, of course, that Taylor and the others will be returning to Libya anytime soon.  But Libya has obviously learned nothing from this entire fiasco — other than that detaining ICC employees is a good way to get the Court to do whatever you want.

International Law and Literature: Daredevil and the Right to a Fair and Public Hearing

by Chris Borgen

Courtesy of Christopher Libertino, my favorite film composer (and former college roommate), I want to point out that a recent post by James Daily on Subculture for the Cultured is about the international law ramifications of the actions of the superhero Daredevil in his current story arc. Daily is an attorney and a research associate at the Hoover Institution’s Project on Commercializing Innovation. His entries often focus on various legal issues in superhero comics. Here’s the set-up:

The most recent issue of Mark Waid’s fantastic run of Daredevil raises some interesting questions related to international law, which is always a tricky area. Spoilers ahead!

If you haven’t been following Daredevil lately, you should because it’s really great, but here’s the story so far: The main story arc over the past few issues has been about Daredevil’s theft of a disc containing financial information about all of the major criminal organization in the world (e.g. AIM, HYDRA). Daredevil uncovered a plan to turn Latveria into a financial haven for these organizations, which would be highly profitable for Latveria. By stopping the plan, Daredevil made Latveria more than a bit unhappy, and so he was abducted from New York and taken to Latveria’s capital, where he was summarily punished for his actions. (I won’t reveal the punishment because it’s a spoiler for the next issue). Just before the punishment commences, Daredevil demands “an opportunity to mount a defense in accordance with international law!” But just what does this mean?

Daily goes on to explain the basics of obligation under treaties and customary international law and is savvy enough to ask whether Latveria, which is controlled by Dr. Doom, would actually sign-on to the International Covenant on Civil and Political Rights. The one thing I would adjust in his pithy summary is the cross-wiring of customary international law and jus cogens. See this:

Some aspects of international law are so fundamental and universal that they are considered jus cogens, also called “peremptory norms.” This is the highest kind of customary international law, and it is considered binding on a state even if the state has no explicit law on the subject. Examples of jus cogens include the right to self defense and the prohibitions against slavery and genocide. Judge Patrick Robinson, who presided over the trial of Slobodan Milošević, has written that the right to a fair trial is also a peremptory norm. So according to customary international law, Daredevil has a right to a fair trial, which presumably includes the right to mount a defense. In what way is this binding on Latveria?

Customary international law “is not binding on a nation in the same measure that municipal law is binding on the citizen, but it is sustained by very cogent considerations of morality, commercial advantage, and fear of hostile attack.” 44B Am. Jur. 2d Int’l Law § 7. Alas for Daredevil, Latveria is a nation unconcerned with morality and only vaguely concerned with commercial advantage or fear of hostile attack.

I would pull these strands apart. First, considering customary international law, my main concern would be whether Latveria was a persistent objector to the establishment of a right to a fair trial.  While I am not conversant in the full state practice of Latveria, a quick perusal of Dr. Doom’s shenanigans make this a real possibility (but which of his actions are state action in his official capacity and which are ultra vires and imputable only to him?).

Anyway, from there we can make the second argument based on jus cogens, not likening it to advanced customary international law, but as an independent source of law not based on the prevalence of state practice. And here we would fall into the standard arguments of how one can–or cannot–discern jus cogens.

I hope Daily posts more on international law, national security, and superheroes. As we’ve been writing (for example: 1, 2, 3) getting a conversation going on representations of international law in popular culture can inform the public as to how international law does and does not work. And, in any case, somebody needs to sort out the (real) Pentagon’s snit over the operational mandate for SHIELD.

UPDATE: see also Daily’s blog Law and the Multiverse!  It includes a long post on SHIELD and illegal orders under the UCMJ.  I’ll definitely be reading this blog going forward.  ‘Nuff said.

Taylor Released! (Though Not Because of Carr) (Updated)

by Kevin Jon Heller

The Australian media is reporting that Melinda Taylor is heading home, having being illegally detained by the Libyan government for 25 days.  That is fantastic news — and for Taylor and her family, it does not matter why she is free. Institutionally, however, the reason for her release matters a great deal.  So it is very important to note that, according to Libya’s representative to the ICC, she is free because of her immunity from prosecution, not because of Bob Carr’s counterproductive diplomacy or the ICC’s statement of “regret” (emphasis mine):

MICHAEL VINCENT: You were there when she was apprehended initially, but she was never charged, was she, with spying?

AHMED AL-JEHANI: Yes the prosecutor general insisting that he should charge her in crime of spying, but really there is some obstacles in legal procedure, law and even in the international law. I mean that she has her privileges and immunity, which cannot be denied from the prosecutor general. For this reason the prosecutor general, Libyan prosecutor general is still insisting not to bring her before the judge.

We know from the beginning, if she was brought to a judge, Libyan judge, he would release her because she has also her immunity and privileges. Nevertheless, she committed a mistake really. I was an eye-witness when she took and surrendered and hand over documents and letters to Saif al-Islam Gaddafi.

MICHAEL VINCENT: So even though, as she say, she may have made mistakes by handing over these documents to Saif al-Islam Gaddafi, these documents relating to his right-hand man, Mohamed Ismail, you don’t think that she ever broke any laws either Libyan or international?

AHMED AL-JEHANI: Yes, yes communication with the enemy. There is a crime in Libya in the criminal court to communicate with the enemy of the state.

MICHAEL VINCENT: But you believe as a defence lawyer from the ICC she was protected?

AHMED AL-JEHANI: All the elements of this crime is proven really. And she brought a letter written in Arabic and she should be more, what we say, more careful to read, or to bring this letter to an interpreter to know what the contents of this document and this letter.

How can have and bring with you letters and documents without knowing its content?

MICHAEL VINCENT: But you believe her immunity has meant that she cannot be charged in Libya?

AHMED AL-JEHANI: Yes, from the prosecutor she was (inaudible) charges. But her immunity in, what we say, was an obstacle to prosecute here in Libya. So the prosecutor general he realise it, but too late, that he can’t prosecute them before the Libyan courts.

Libya’s acceptance of Taylor’s immunity, however belated, is a welcome development.  But notice two problems with its position.  To begin with, Taylor’s immunity not only prohibits her prosecution; it also prohibited her search and detention…

Weekday News Wrap: July 2, 2012

by An Hertogen

Upcoming Events: July 1, 2012

by An Hertogen

Calls for Papers

  • The Institute for Transnational Arbitration is organizing its second Annual Winter Forum in Miami on January 24-25, 2013. It is calling for abstracts of works-in-progress on a broad variety of topics related to international commercial arbitration and international investment law. Abstracts are due by September 1, 2012 and need to be sent to ITAWinterForum2013 [at] gmail [dot] com.  Proposals should be made in a Word document that is no longer than 1,000 words.  The cover email should indicate your affiliated institution, your contact details and whether your paper has been submitted or accepted for publication elsewhere.  Priority will be given to unpublished papers and works-in-progress. There will be the opportunity to publish final papers in the World Arbitration and Mediation Review. Please direct any enquiries to Joseph Matthews or Jarrod Wong.

The Council for American Students in International Negotiations has issued the following calls for papers:

  • Eyes on the ICC is the first peer-reviewed interdisciplinary journal dedicated exclusively to the work of the International Criminal Court and international criminal law. The journal invites quality submissions for its eighth volume from practitioners, scholars, jurists, and professionals in fields related to international criminal law and policy. Occasionally, exceptional student work will be accepted. Manuscripts are accepted on a rolling basis until August 15, 2012. Manuscripts must be computer-generated and submitted electronically via e-mail to icc [at] americanstudents [dot] us, or via Berkeley Electronic Press’s ExpressO submission service, at http://law.bepress.com/expresso. Each submission should contain an abstract, the author’s CV, appropriate contact information, and a cover letter. Articles and Notes may range in length from 25 to 80 pages, double-spaced. Book reviews range from 1,000 to 2,500 words. Submissions should adhere closely to the Chicago Manual of Style and cite sources in legal format according to the Harvard Blue Book. Authors are encouraged to seek comments on their manuscripts from colleagues within their discipline. The journal invites commentary on the quality of its submissions, whether by private correspondence or published letter. Correspondence not directly related to the submission process should be addressed to the Editor-in-Chief, Ms. Juliet Sorensen, at juliet [at] americanstudents [dot] us
  • The Interdisciplinary Journal of Human Rights Law (IJHRL) is an annual, peer-reviewed scholarly journal published by the Council for American Students in International Negotiations. The journal invites quality submissions from scholars, jurists, and professionals in fields related to human rights. Occasionally, exceptional student work will be accepted. IJHRL also welcomes review essays, book reviews, and comments/notes from the field. The deadline for submissions for consideration for the 2012-2013 issue is August 1, 2012. Manuscripts must be computer generated in MS Word and submitted electronically in .doc format via e-mail or Berkeley Electronic Press’s ExpressO submission service. Each submission should contain an abstract of no more than 150 words, a CV, appropriate contact information and a cover letter to the editor assuring that the manuscript has not been submitted or published elsewhere and that the author will not submit the manuscript to any other publication while under consideration with the IJHRL. Manuscripts should range from 3,000 to 10,000 words (approximately 15-25 pages) and be typed, double-spaced. Notes from the field run at approximately 4,000-5,000 words. Book reviews may run from 1,000 to 2,500 words. Please cite sources in standard American legal format according to The Bluebook: A Uniform System of Citation. Submissions that do not adhere to the aforementioned guidelines may not be considered for publication. Submissions are subject to external, double-blind peer review. Additionally, authors are encouraged to seek comments on their manuscripts from colleagues within their discipline. Notification of acceptance, rejection or need for revision will be given within approximately 6-8 weeks of receipt of manuscript. Submissions and other editorial correspondence should be addressed to ijhrl [at] americanstudents [dot] us.

Volunteer opportunities

The Council of American Students in International Relations (CASIN) is looking for volunteers to take on the role of Board Member, Assistant Editor and Copy Editor of the Interdisciplinary Journal of Human Rights Law.

  • CASIN Members interested in the role of Board Member should send a letter of interest and resume to Selecting and Nominating Chair Anna Sandor.
  • To apply for one of the editor roles please send a letter of interest, resume/CV, relevant writing sample, contact information for three references and examples of past editing work (if applicable), in .doc or .pdf format to ijhrl [at] americanstudents [dot] us by July 15, 2012. In the letter of interest, please indicate which editor position you are applying for at the Interdisciplinary Journal of Human Rights Law.
  • More information can be found here.